Ramiro Hernandez v. Jaime Garcia Mis Tres Properties, LLC And Steve Deck

NUMBER 13-10-00539-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI–EDINBURG
WILLIAM THOMAS SPENCE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the Criminal District Court
of Jefferson County, Texas
MEMORANDUM OPINION
Before Justices Rodriguez, Vela, and Perkes
Memorandum Opinion by Justice Perkes
Appellant, William Thomas Spence, appeals his conviction for intoxication
manslaughter, a second-degree felony.1 See TEX. PENAL CODE ANN. § 49.08 (West 2011).
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Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this case is before
us on transfer from the Ninth Court of Appeals in Beaumont, Texas. See TEX. GOV'T CODE ANN. § 73.001 (West
2005).
After a jury trial on guilt-innocence, the trial court sentenced appellant to a term of twenty
years of confinement in the Texas Department of Criminal Justice—Institutional Division.
By two issues, appellant argues that the trial court’s decision to admit a written witness
statement into evidence: (1) violated the Confrontation Clause of the Sixth Amendment to
the United States Constitution; and (2) violated the hearsay rule. Appellant also asks this
Court to amend the trial court’s deadly weapon finding. We affirm the trial court’s judgment,
as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
The record shows that appellant caused a serious motor-vehicle accident shortly
after daybreak on Labor Day 2006. While driving, appellant hit two vehicles in the
oncoming lane of traffic, a pick-up truck and a Jeep. The two trucks were part of a small
caravan traveling on a church-related fishing trip. A passenger in the Jeep was pinned
behind the dashboard and killed. When appellant emerged from the pick-up truck he was
driving, his pants were down around his knees, and his female passenger, Ronni Kay
Vasquez, was nude. Appellant tested positive for cocaine and other drugs including,
benzodiazepine, amphetamine, and opiates.
At trial, appellant testified that he was not intoxicated, but had fallen asleep while
driving, thus causing the accident. According to appellant, Vasquez’s boyfriend had
committed suicide the morning before while he was lying in bed next to Vasquez. Appellant
testified that to help cheer Vasquez up, he took her to the beach at about midnight and they
went “skinny dipping.”
On cross-examination, appellant testified that he was certain Vasquez would
corroborate his story if she were present. The State then offered Vasquez’s written witness
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statement into evidence. Appellant’s trial counsel objected that the State could have
subpoenaed Vasquez to testify, but the trial court overruled the objection and admitted
Vasquez’s statement into evidence. The State then impeached appellant using Vasquez’s
witness statement. In the statement, Vasquez stated she did not recall much about the
time leading up to the accident because she had taken prescription medications, “mainly
Xanax and Soma’s [sic.]” She also stated, “Tommy was messed up that night. He takes
pills for pain in his back . . . I do remember him being messed up.”
II. ANALYSIS
A. Admission of the Witness Statement into Evidence
On appeal, by his two issues, appellant argues the admission of Vasquez’s witness
statement into evidence violated his rights under the Confrontation Clause of the Sixth
Amendment to the United States Constitution and violated the hearsay rule. The State
contends appellant failed to preserve error because the complaints he asserts on appeal do
not comport with the objection he made in the trial court.
To preserve error, the complaint on appeal must comport with the objection lodged in
the trial court. See TEX. R. APP. P. 33.1; Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.
Crim. App. 2004) (“[i]t is well-settled that the legal basis of a complaint raised on appeal
cannot vary from that raised at trial”); see also Bell v. State, 938 S.W.2d 35, 54 (Tex. Crim.
App. 1996). In the trial court, appellant objected only that the State could have subpoenaed
Vasquez. Because appellant’s complaints on appeal do not comport with his objection in
the trial court, appellant has not preserved his complaints for appellate review. See
Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004) (concluding that a hearsay
objection failed to preserve a confrontation-clause complaint to the admission of out-of-court
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statements); Butler v. State, 872 S.W.2d 227, 237 (Tex. Crim. App. 1994) (holding that an
objection that a witness was testifying from an autopsy report he did not author was not
sufficiently specific to preserve a hearsay complaint for appellate review); Lopez v. State,
200 S.W.3d 246, 255 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (holding that an
objection that a statement was hearsay, prejudicial, and double hearsay did not preserve a
confrontation clause complaint for appellate review).
We also note that the Texas Court of Criminal Appeals has expressly rejected the
argument that the admission of hearsay evidence is fundamental error so that error may be
preserved even without a timely, specific objection. Moore v. State, 935 S.W.2d 124, 130
(Tex. Crim. App. 1996); see Yanez v. State, 199 S.W.3d 293, 308 (Tex. App.—Corpus
Christi 2006, no pet.) (holding erroneous admission of hearsay is non-constitutional error
subject to a harm analysis). The Court of Criminal Appeals has also held that a
confrontation clause complaint is not fundamental error—it can be waived by the failure to
object. Paredes, 129 S.W.3d at 535; Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App.
1990) (“We hold that in failing to object at trial, appellant waived any claim that admission of
the videotape violated his rights to confrontation and due process/due course of law.”),
overruled on other grounds by, Karanev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App.
2009). Because appellant did not preserve his complaints for appellate review, we overrule
both of his issues on appeal.
B. The Trial Court’s Deadly Weapon Finding
Near the end of his appellate brief, just before the “prayer” section, appellant
includes a section subtitled, “CORRECTION OF JUDGMENT.” In this section, appellant
argues that no affirmative deadly weapon finding was pronounced in open court, but that the
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judgment includes an affirmative deadly weapon finding, stating in one place the weapon
was a firearm and stating in another place the weapon was an automobile. Appellant asks
this Court to amend the judgment “to properly reflect the [c]ourt proceedings.”
We do not reach the merits, if any, of appellant’s contention that no affirmative deadly
weapon finding was pronounced in open court because appellant has failed to support this
argument with citation to any legal authority. See TEX. R. APP. P. 38.1(i); Rocha v. State, 16
S.W.3d 1, 20 (Tex. Crim. App. 2000) (explaining an argument that is not supported by
citation to legal authority presents nothing for appellate review); see also Rankin v. State, 46
S.W.3d 899, 901 (Tex. Crim. App. 2001) (explaining the defendant waived appellate review
of a complaint that the evidence was factually insufficient to support a deadly weapon finding
when no legal authority concerning the issue was presented to the court of appeals). We
note, however, that the trial court, in its findings announced in open court at appellant’s
sentencing hearing, referred to the truck appellant was driving as a “4000-pound missile.”
A review of the judgment, however, reveals a conflict regarding the special findings
on the use of a deadly weapon. Although there is no reference in the record regarding the
use of a firearm, page one of the judgment includes the following language:
Findings on Deadly Weapon:
YES, A FIREARM
On the other hand, page two of the judgment includes the following special findings:
Furthermore, the following special findings or orders apply:
Deadly Weapon.
The Court FINDS Defendant used or exhibited a deadly weapon, namely,
a car, during the commission of a felony offense or during immediate
flight therefrom or was a party to the offense and knew that a deadly
weapon would be used or exhibited. TEX. CODE CRIM. PROC. art.
42.12 § 3g.
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Having reviewed the entire record, we conclude the trial court made a clerical error on
the first page of its judgment, by stating the deadly weapon used was a firearm. An
intermediate appellate court may modify a trial court's judgment to make the record speak
the truth when it has the necessary data and information to do so. TEX. R. APP. P. 43.2(b);
see, e.g., French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (affirming the court
of appeals’s judgment that added an omitted deadly weapon finding to a trial court’s
judgment); Cobb v. State, 95 S.W.3d 664, 668 (Tex. App.—Houston [1st Dist.] 2002, no pet.)
(modifying a general deadly weapon finding to specify a firearm was used or exhibited
during the commission of the offense). Accordingly, we delete the word “firearm” in the
deadly weapon finding on the first page of the trial court’s judgment and add in its place that
the deadly weapon was a “car.”
III. CONCLUSION
We affirm the trial court’s judgment, as modified.
______________________
Gregory T. Perkes
Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the
8th day of March, 2012.
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