Efrend Cantoral v. State

Affirmed and Memorandum Opinion filed July 10, 2008

Affirmed and Memorandum Opinion filed July 10, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00730-CR

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EFREND CANTORAL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 52,332

M E M O R A N D U M   O P I N I O N

Appellant, Efrend Cantoral, pleaded guilty to one count of harassment while imprisoned at the Texas Department of Corrections.  See Tex. Pen. Code Ann. _ 22.11(a)(1) (Vernon Supp. 2007).^[1]  After appellant pleaded true to an enhancement paragraph for a previous aggravated assault conviction, the trial court found him guilty and sentenced him to ten years= imprisonment.  In a single issue, appellant argues that the trial court committed reversible error by admitting into evidence seven hearsay statements located within his medical records.  We affirm.

BACKGROUND

Appellant was originally incarcerated for aggravated assault and had about two years remaining on his eight-year sentence when he was charged with harassment. Specifically, appellant was charged by indictment for harassing Blanche Jackson, a corrections officer, by causing appellant=s urine to make contact with Jackson while imprisoned in a correctional facility.  Prior to trial, appellant filed his medical records with the trial court, along with two business records affidavits from custodians of the records, and gave notice to the State that the records would be offered in evidence at trial.

At trial, appellant pleaded guilty, and the case was set for a punishment hearing.  There was no agreement with the State on punishment.  At the punishment hearing, the State began by presenting three witnesses who testified about appellant=s previous assaultive and threatening behavior during his incarceration.  John Wright testified that while he was working as a corrections officer at the Michael Unit in Anderson County in 2002, appellant threw a four-foot long fluorescent light bulb at him Alike a javelin.@  Samuel Hayes, Jr. testified that appellant threatened him while he was working as corrections officers at the Michael Unit.  Jemal Chambers testified that while she was working at the Darrington Unit, appellant grabbed a large rolling shield that had been left in front of his cell, pushed it into her forearm, and threatened her.  The State then presented Mr. Blanche Jackson, the named victim in the instant case, who testified that while he was a corrections officer at the Darrington Unit, appellant squirted him with a liquid substance that smelled like urine.

Appellant also testified during the punishment hearing, describing mitigating circumstances in his life.  After he testified, the State offered his medical records into evidence under the Abusiness records@ exception to the hearsay rule.  Appellant=s counsel=s  objection to the medical records= admission based on relevance was overruled.  The following exchange occurred:

Appellant=s Counsel:         . . . [T]here is hearsay upon hearsay in those records.  I object to the hearsay, not to the records, not hearsay of the records themselves because I filed them under the business record affidavit. 

Trial Court:                      Well, the objection was / remains sustained as to the hearsay exception, unless you point out specifically in there it=s too broad.  I have to rule upon that.  That=s overruled.  Anything else?

There was no reply from appellant=s counsel, and the medical records were admitted into evidence.  After hearing the evidence, the trial court sentenced appellant to ten years= imprisonment.  On appeal, appellant argues that the trial court committed reversible error by admitting into evidence seven hearsay statements within the medical records during the punishment hearing.

STANDARD OF REVIEW

A trial court=s ruling admitting or excluding evidence is reviewed on appeal under an abuse of discretion standard.  Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008); Austin v. State, 222 S.W.3d 801, 807 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d).  The trial court abuses its discretion only when the decision lies outside the zone of reasonable disagreement. Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007); State v. Vasquez, 230 S.W.3d 744, 747 (Tex. App.CHouston [14th Dist.] 2007, no pet.).  The trial court=s decision to admit or exclude evidence will be upheld if it is reasonably supported by the record and is correct under any theory of law applicable to the case.  Ramos, 245 S.W.3d at 418; Dickson v. State, 246 S.W.3d 733, 738 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d).

DISCUSSION

In his sole issue, appellant asserts that the trial court should have excluded seven hearsay statements located in six pages of the approximately six hundred pages of medical records.  The State contends that appellant did not preserve his complaint for appellate review because his objection was not made with sufficient specificity.  We agree.

In order to preserve error on admission of evidence at trial, a party must make a timely and sufficiently specific objection and obtain a ruling.  Tex. R. App. 33.1(a).  The requirement that complaints be raised in the trial court (1) ensures that the trial court will have an opportunity to prevent or correct errors, thereby eliminating the need for a costly and time-consuming appeal and retrial; (2) guarantees that opposing counsel will have a fair opportunity to respond to complaints; and (3) promotes the orderly and effective presentation of the case to the trier of fact.  Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006).  Making the trial court aware of the complaint requires that both the grounds and what is being objected to be apparent.  See Hernandez v. State, 599 S.W.2d 614, 617 (Tex. Crim. App. [Panel Op.] 1980) (en banc) (op. on reh=g).

When an exhibit contains both admissible and inadmissible evidence, the objection must specifically identify what portions are inadmissible to apprise the trial court of the exact objection, and to preserve error.  Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995) (holding that objection to entire video recording without specific reference to challenged material did not inform trial court of specific objection and did not preserve error for appeal). Here, appellant did not make a specific objection so as to inform the trial court of the specific objectionable material in the medical records.  Appellant made no specific reference to the allegedly inadmissible evidence within the six hundred pages of medical records.  Appellant=s objection was not specific enough to make the trial court aware of that to which appellant was objecting.  Therefore, appellant failed to preserve the hearsay within hearsay issue.  Id.; see also Riley v. State, 988 S.W.2d 895, 898 (Tex. App.CHouston [14th Dist.] 1999, no pet.) (holding that objection to entire audio portion of videotape was not specific and did not preserve error for appeal because it failed to indicate any specific objectionable part of audio portion); Johnson v. State, 747 S.W.2d 451, 453 (Tex. App.CHouston [14th Dist.] 1988, writ ref=d) (holding that objection to admission of tape-recording on ground that it contained numerous statements about  extraneous offenses did not preserve error for appeal because no specific reference made to portions of recording containing statements about extraneous offenses);  Jacobs v. State, No. 06-03-00204-CR, 2004 WL 1116232, at *3 (Tex. App.CTexarkana May 20, 2004, no pet.) (mem. op.) (not designated for publication) (holding that hearsay within hearsay objection did not preserve error  because no specific reference made to inadmissible parts of medical records).

Accordingly, we overrule appellant=s sole issue.^[2] We affirm the judgment of the trial court.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed July 10, 2008.

Panel consists of Chief Justice Hedges, Justice Boyce, and Senior Justice Price.^*

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Section 22.11(a)(1) provides: AA person commits an offense if, with the intent to assault, harass, or alarm, the person while imprisoned or confined in a correctional or detention facility, causes another person to contact the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of the actor, another person, or an animal.@

^[2]  The State also advances an argument under the invited error doctrine.  We need not address this argument because we find that appellant did not preserve his complaint for appellate review.

^*  Senior Justice Frank C. Price sitting by assignment.