Robinson v. State , 2010 Tex. App. LEXIS 2421 ( 2010 )

OPINION

Through two points of error, appellant Logan Myles Robinson appeals his conviction and thirteen-year sentence for sexual assault. See Tex. Penal Code Ann. § 22.011 (Vernon Supp. 2009). We affirm.

Background Facts In 2005, a Tarrant County grand jury indicted Robinson for sexually assaulting Angela, his ex-wife.¹ The parties filed various pretrial documents, and then under a plea bargain with the State, Robinson pled guilty, waived certain constitutional and statutory rights, and entered a judicial confession. The trial court deferred its adjudication of Robinson's guilt, placed him on ten years of community supervision, and delineated several conditions of the community supervision.

In 2007, the State petitioned the trial court to proceed to its adjudication of Robinson's guilt. The State amended its petition in 2008; the amended petition alleged that Robinson had violated his community supervision conditions by committing a new offense, not maintaining suitable employment, not notifying law enforcement that he changed addresses, failing to pay certain costs and fees associated with his case, and not attending sex offender treatment. In the hearing on the State's amended petition, Robinson pled true to failing to pay costs and fees and pled not true to the other allegations. The State called witnesses to testify about the allegations in the petition that Robinson had not pled true to. The trial court found all of the allegations true, convicted Robinson of sexual assault, and after hearing evidence related to his punishment, ² assessed thirteen years' confinement. Robinson filed his notice of this appeal.

Robinson's Points of Error In Robinson's two points, which he briefs together (and which we will therefore resolve together), he argues that the trial court erred by limiting his cross-examination of Angela during the adjudication hearing, by refusing to grant a continuance to secure Angela's testimony during the punishment hearing after he attempted but failed to subpoena her, and by adjudicating him guilty. Robinson contends that the trial court should have allowed his questioning of Angela regarding details of the underlying sexual assault because he was trying to establish his innocence in accordance with an application for a writ of habeas corpus that he had filed.³ The limitation of cross-examination during the adjudication hearing

Robinson first contends that the trial court erred by limiting his cross-examination of Angela during the adjudication hearing on the State's amended petition. He specifically argues that the court denied his due process rights of cross-examination and confrontation.

The State called Angela to testify about the first paragraph of its amended petition to adjudicate. When Robinson attempted to cross-examine Angela about details of the sexual assault rather than issues related to the State's amended petition, the State objected on relevance grounds and the trial court indicated that it was not going to allow any questioning regarding the underlying offense during the adjudication hearing. The trial court told Robinson's counsel, however, that he could go into the merits of the writ application and call Angela as a witness during the punishment portion of Robinson's trial. Robinson's counsel indicated his acceptance of that solution and told the court that he had no more questions for Angela at that time.

The Sixth Amendment gives a defendant the right to be confronted with the witnesses against him. U.S. Const. amend. VI; Crawford v. Washington,541 U.S. 36, 42, 124 S.Ct. 1354, 1359, 158 L.Ed.2d 177 (2004). And that right includes the qualified right to cross-examine those witnesses. SeeDavis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); Hammer v. State, 296 S.W.3d 555, 561 (Tex.Crim.App. 2009); Walkerv. State, 300 S.W.3d 836, 844-46 (Tex.App.-Fort Worth 2009, pet. ref'd) (citing Lopez v. State, 18 S.W.3d 220, 222 (Tex.Crim.App. 2000)).

However, to preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R.App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App. 1998) (op. on reh'g), cert. denied, 526 U.S. 1070,119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. Tex.R.App. P. 33.1(a)(2); Mendez v. State,138 S.W.3d 334, 338, 341 (Tex.Crim.App. 2004).

Preservation of error is a systemic requirement that this court should review on its own motion. Archie v. State, 221 S.W.3d 695, 698 (Tex.Crim.App. 2007). Preservation requirements apply to confrontation clause complaints. See Reyna v. State, 168 S.W.3d 173, 179-80 (Tex.Crim.App. 2005); Paredes v. State, 129 S.W.3d 530, 535 (Tex.Crim.App. 2004) (overruling the appellant's constitutional confrontation clause points because he did not preserve error related to the confrontation clause at trial); Campos v. State, 186 S.W.3d 93, 98 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (explaining that the "right of confrontation is vital to an ordered criminal justice system, but it is nonetheless a trial right, and a defendant waives his right to confront witnesses if he does not object at trial"); Courson v. State,160 S.W.3d 125, 129 (Tex.App.-Fort Worth 2005, no pet.).

Robinson did not assert any constitutional violation — related to the confrontation clause, the related right of cross-examination, or otherwise — when the trial court told him that he would not be permitted to ask Angela questions about the sexual assault during the adjudication hearing.⁴ The dissenting opinion correctly indicates that the code of criminal procedure does not require a separate punishment hearing during an adjudication proceeding and that, functionally, an adjudication proceeding is unitary. See Euler v. State, 218 S.W.3d 88, 92 (Tex.Crim.App. 2007); Griffith v. State, 166 S.W.3d 261, 265 (Tex.Crim.App. 2005); Dissenting Op. at 580-81. But that legal principle is irrelevant to this case because Robinson did not object to the trial court's continuing or segregating his adjudication proceeding and has not raised such as error on appeal. Rather, Robinson consented to the trial court's continuance of the punishment hearing from October 2008 to January 2009 because he requested a presentence investigation report to be prepared before the trial court ordered the terms of its sentence.⁵ And Robinson obviously recognized the need to ensure his witnesses' presence at the hearing in January 2009 because he sought subpoenas for two witnesses, including Angela.⁶

The dissenting opinion has not disputed that Robinson was required to preserve confrontation clause complaints and that he did not do so. Based on the authority cited above, we hold that Robinson forfeited his assertion that his rights were violated during the adjudication hearing, and we overrule that part of his two points.

The absence of Angela's testimony during the punishment hearing

The punishment hearing in Robinson's trial was held in January 2009, almost three months after the trial court found him guilty in October 2008. On January 23, 2009, Robinson filed an application to subpoena Angela to appear at the punishment hearing, but the application did not include her location or any of her contact information. At the beginning of the punishment hearing, Robinson's counsel told the court that Angela had not been served with the subpoena but that his investigator had talked to Angela. Robinson's counsel orally requested a continuance to find Angela so that she could provide testimony that would support his writ application and mitigate his punishment by showing the "severity of the effect upon the victim." Robinson contends on appeal that the trial court erred by denying the continuance.⁷

The code of criminal procedure provides, "A criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown." Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 2006) (emphasis added). Accordingly, the denial of an oral motion for continuance preserves nothing for our review. Andersonv. State, 301 S.W.3d 276, 278-81 (Tex.Crim.App. 2009) (holding that a court of appeals erred by applying a due process exception to the motion for continuance preservation requirement and concluding that the "right to present a defense is subject to forfeiture"); Williams v. State,172 S.W.3d 730, 733 n. 1 (Tex.App.-Fort Worth 2005, pet. ref'd); Rickettsv. State, 89 S.W.3d 312, 317 (Tex.App.-Fort Worth 2002, pet. ref'd) (citing Dewberry v. State, 4 S.W.3d 735, 755 (Tex.Crim.App. 1999), cert.denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000)).

As the dissent argues, article 29.13 of the code of criminal procedure provides,

A continuance or postponement may be granted on the motion of the State or defendant after the trial has begun, when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial began, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had.

Tex. Code Crim. Proc. Ann. art. 29.13 (Vernon 2006); see Dissenting Op. at 583. But this provision does not address or remove the requirement that a motion for continuance must be in writing. The court of criminal appeals and our court have both applied the in-writing requirement to motions for continuance filed during a trial. See Dewberry,4 S.W.3d at 755-56; Matamoros v. State, 901 S.W.2d 470, 478 (Tex.Crim.App. 1995); Woodall v. State, 77 S.W.3d 388, 401 (Tex.App.-Fort Worth 2002, pet. ref'd); see also Tex. Code Crim. Proc. Ann. art. 29.08 (Vernon 2006) (stating that "[a]ll motions for continuance must be sworn to") (emphasis added); Dixon v. State, 64 S.W.3d 469, 473 (Tex.App.-Amarillo 2001, pet. ref'd) (stating that an "oral motion for continuance during trial does not preserve error for appellate review, even in the face of an assertion that the Court's equitable powers allow consideration of the issue").⁸

Therefore, we hold that Robinson's oral motion for continuance preserved nothing for our review, and we overrule that portion of his two points.⁹ The trial court's decision to adjudicate Robinson guilty

Finally, in the title of one of Robinson's points of error, he argues that the trial court "abused its discretion in adjudicating [him] guilty." However, he does not specify why the trial court abused its discretion beyond his assertions about his constitutional rights and his oral continuance request, which we have already resolved. Furthermore, Robinson has not directly challenged the sufficiency of the evidence to prove the allegations contained in the State's amended petition. Although he cites law in a portion of his brief related to a trial court's ability to revoke community supervision for failure to pay fees when the defendant is unable to pay, he did not present inability to pay as a defense at trial. Because Robinson's general contention that the trial court abused its discretion by adjudicating him guilty is inadequately briefed, we overrule that portion of his two points. See Tex.R.App. P. 38.1(i); Tong v. State, 25 S.W.3d 707, 710 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 1053, 121 S.Ct. 2196, 149 L.Ed.2d 1027 (2001); Harkins v. State, 268 S.W.3d 740, 742 n. 2 (Tex.App.-Fort Worth 2008, pet. ref'd).

Conclusion Having overruled both of Robinson's points, we affirm the trial court's judgment.

DAUPHINOT, J. filed a dissenting opinion.

¹ Robinson was married to Angela at the time of the assault, but they are now divorced.

² During the punishment hearing, the State presented a presentence investigation report, and Robinson called his sister and his mother, among other witnesses.

³ None of Robinson's points of error, his notice of appeal, nor his two motions for new trial expressly challenge the trial court's decision to deny his writ application.

⁴ Robinson mentioned the rights of confrontation and cross-examination in his second motion for new trial, but he related those rights to the use of hearsay statements in the presentence investigation report and not to any issues occurring in the adjudication hearing.

⁵ Regardless of whether Robinson's petition to adjudicate hearingshould have occurred in two phases, it is indisputable that it did occur in two phases — occurring months apart — because of Robinson's request that the probation department prepare a presentence investigation report. The dissenting opinion's statement that "no one returned to court for a punishment portion . . . of the trial" is not supportable under the record in this case. Dissenting Op. at 581.

⁶ The dissenting opinion's statement and conclusion that the trial court denied Robinson due process because it prevented his opportunity to offer appropriate evidence simply is not borne out by this record. See Dissenting Op. at 581-83. The trial court expressly agreed to let Robinson call Angela to testify about the nature of Robinson's offense during the upcoming punishment portion of the trial rather than in the initial revocation portion, and Robinson's counsel did not object to that solution (by citing the 6th Amendment or the Constitution generally, using the word "confrontation," or in any other way); instead he indicated his acceptance of the solution. Then, although Robinson had nearly three months to serve a subpoena and guarantee Angela's presence at the punishment portion, he did not serve her with the subpoena so she did not appear.

⁷ The State did not subpoena Angela for her testimony at the adjudication hearing or the punishment hearing. See Tex. Code Crim. Proc. Ann. art. 24.03(a) (Vernon 2009) (stating that when "a witness has been served with a subpoena, attached or placed under bail at the instance of either party in a particular case, such execution of process shall inure to the benefit of the opposite party in such case in the event such opposite party desires to use such witness on the trial of the case"). Nothing in the record indicates that the trial court interfered with Robinson's attempt to subpoena Angela or that the trial court would have disallowed Robinson to question Angela about the underlying sexual assault at the punishment hearing if Robinson had obtained her presence at the hearing.

⁸ The dissenting opinion extensively quotes a footnote from the Texarkana Court of Appeals's Rodriguez v. State opinion because the dissenting opinion says that the Rodriguez opinion addressed the continuance issue "in a manner which . . . comports with constitutional mandates." 903 S.W.2d 405, 412 (Tex.App.-Texarkana 1995, pet. ref'd) (op. on reh'g); see Dissenting Op. at 584. But after the footnote inRodriguez that the dissenting opinion has quoted, the Texarkana court actually held that Rodriguez's motion for continuance was nonetheless waived because it was not sworn to. Rodriguez, 903 S.W.2d at 412 ("Until such time as the Court of Criminal Appeals or the Texas Legislature changes the [sworn and in-writing] requirement, this procedure must be met.").

⁹ Robinson has not cited any authority holding that he was entitled to rely on Angela's presence at the punishment hearing — even though she did not receive a subpoena for that hearing — merely because she testified at the adjudication hearing. Also, Robinson's attempt and failure to serve a timely subpoena shows that he did not believe that Angela would appear at the punishment hearing merely because she had appeared at the adjudication hearing. While the trial court indicated during the adjudication hearing that Robinson could call Angela during the obviously distinct punishment hearing, it did not guarantee her presence at that hearing.