                                  NO. 07-10-00349-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                   AUGUST 29, 2012


                         LAQUINTIN JOHNSON, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

           NO. 2010-426,465; HONORABLE CECIL G. PURYEAR, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION

      Appellant LaQuintin Johnson appeals from his conviction by jury of the offense of

burglary of a habitation 1 and the resulting sentence of twenty years of imprisonment.

Appellant challenges his conviction through three issues. We will affirm.


                                      Background


      At trial, the State presented evidence to show that near midnight on March 24,

2009, the victim, a twenty-four-year-old woman, was watching television in her home in
      1
        Tex. Penal Code Ann. § 30.02(a)(1) (West 2010). This is a second degree
felony punishable by imprisonment for a term of not more than 20 years or less than 2
years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.33 (West 2003).
Lubbock. Her front door was unlocked while she awaited the arrival of houseguests.

Instead of the guests she expected, three men entered her home. Two of them had

their faces covered, one wearing a bandanna and a cap, the other wearing pantyhose

over his face and surgical plastic gloves. These two men proceeded to sexually assault

the victim while the third man ran through the house taking items, including a laptop

computer and other electronic items. When they left, the victim called 9-1-1 and her

guests, who soon arrived to find her distraught. Police later spoke with the victim’s

sister, who also lived in the residence but was away at the time. That conversation led

police to appellant, who previously had dated the sister.


         Appellant provided police two written sworn statements. In the first statement, he

described his previous dating relationship with the victim’s sister and acknowledged

attending parties at the residence.     He denied any involvement in the burglary but

implicated others including Danny Wilson and Kevin Price. He told police that after the

burglary he saw items including a laptop computer belonging to the victim’s sister, his

former girlfriend, in the possession of a man who said he bought them from Wilson and

Price.


         Appellant’s second statement contains the acknowledgement he was not

“completely truthful” in his first statement. The second statement related a version of

the events in which appellant described being present in an apartment when Wilson,

Price and others decided to retrieve some property Wilson said had been stolen from

him. Appellant further related how the group left in two cars, with him a passenger in

one, and appellant was surprised when the house at which the group stopped was that

of his former girlfriend. He described his unsuccessful efforts to dissuade Wilson and

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others from taking items from the house, and described his later efforts to recover items

so he could return them to his former girlfriend.


        Appellant also testified at trial, giving a third version of the events.       He

acknowledged to the jury that both of his statements to police contained untruths, but

swore he was telling the truth to the jury, still denying he planned the burglary of the

home.


        Another witness testified she was present in the apartment when the burglary

was planned and that appellant was a leader in the planning. She also indicated her

belief appellant led the group to the house of his former girlfriend.


        Wilson and Price were among those charged with offenses arising from the

burglary. By the time of trial in this case, Price had plead guilty to burglary of the

residence and sexual assault of the victim, and had been sentenced.


        The charge to the jury authorized appellant’s conviction under the law of parties.

Appellant’s issues on appeal do not challenge the sufficiency of the evidence supporting

his conviction.


                                          Analysis


Issue One - Confrontation Clause


        Appellant’s first issue presents a claim his confrontation rights were violated at

his trial. During its case-in-chief, the State called Kevin Price to the stand. Price was

not a cooperative witness. After answering some preliminary questions and responding

affirmatively to a question asking if Danny Wilson and other individuals were involved in


                                             3
the events that lead to his guilty plea, Price was asked about appellant’s involvement.

At that point he refused to answer the prosecutor’s further questions concerning the

events at the residence, saying, “[e]verything that was said at my hearing is on paper. If

that’s what y’all need. Y’all got it. Other than that, I don’t have nothing to say.”


       The prosecutor objected to Price’s refusal to respond to questions, and asked to

“impeach” him with prior statements he made to police. The trial court allowed the State

to do so. Appellant raised no objection. The prosecutor proceeded to read from Price’s

statements, a few sentences at a time, periodically asking Price, “Isn’t that true?” The

record indicates no response from Price to those inquiries.            After this method of

presentation of evidence continued for a period occupying some four pages of the

reporter’s record, appellant objected, stating, “At this point let me object to the form of

the impeachment, as well as to the reading of the document, and the witness is refusing

to answer. I would object under those grounds.” The court overruled the objection.

Appellant a short time later added an objection “Rule 613 of the Rules of Evidence.” He

also asked for and received a running objection on these bases. The State continued to

read from Price’s statements and ask questions to which Price did not respond. Price’s

statements described appellant’s leading role in the instigation of the burglary of the

residence, although Price said appellant did not actually enter the home that evening.

The statements confirmed that Price and Wilson were the two who sexually assaulted

the victim.


       When the prosecutor then asked Price to identify an exhibit consisting of a

transcript of his testimony during the sentencing phase of his trial, Price threw the

transcript down, causing the court to order him removed from the courtroom. At that

                                              4
point the State offered into evidence Price’s two statements to police.         Appellant’s

counsel stated, “Judge, of course, with the recitations and the Court’s rulings, we have

no further objections.”     The court overruled the objection and admitted the two

statements.


       The State then offered the transcript of Price’s sentencing phase testimony.

Appellant’s counsel objected on the basis of hearsay, and raised an objection under the

Confrontation Clause, noting appellant had no counsel present to cross-examine Price

at his trial. The court overruled that objection and admitted the transcript, though the

State later withdrew it and the transcript was not given to the jury.


       Appellant’s first issue presents the contention the trial court erred by allowing the

State to read Price’s statements to the jury after Price refused to answer the

prosecutor’s questions, because doing so violated his right to confront and cross-

examine the witnesses against him as guaranteed by the Sixth and Fourteenth

Amendments to the United States Constitution and Article I, Section 10 of the Texas

Constitution. U.S. Const. amends. VI, XIV; Tex. Const. art. I, § 10.


       The State points out the issue raised on appeal does not comport with the

objection appellant made at trial to the reading of Price’s statements, and thus is not

preserved for our review. We must agree.


       “[F]ailure to object in a timely and specific manner during trial forfeits complaints

about the admissibility of evidence. This is true even though the error may concern a

constitutional right of the defendant." Saldano v. State, 70 S.W.3d 873, 889

(Tex.Crim.App. 2002) (footnote omitted); see Briggs v. State, 789 S.W.2d 918, 923


                                             5
(Tex.Crim.App. 1990) (noting constitutional error may be waived). General rules of

preservation must be followed to preserve error on Confrontation Clause grounds. See

Paredes v. State, 129 S.W.3d 530, 535 (Tex.Crim.App. 2004) (finding Confrontation

Clause argument not preserved because of failure to object on that ground in trial

court). See also Reyna v. State, 168 S.W.3d 173, 176-77 (Tex.Crim.App. 2005) (also

applying error preservation requirement with regard to Confrontation Clause argument);

Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App. 2004) (to preserve contention

for appellate review, appellate complaint must comport with objection in trial court);

Martinez v. State, 91 S.W.3d 331, 335-36 (Tex.Crim.App. 2002) (party complaining on

appeal of trial court's admission, exclusion, or suppression of evidence "must, at the

earliest opportunity, have done everything necessary to bring to the judge's attention the

evidence rule [or statute] in question and its precise and proper application to the

evidence in question”).


      In Parades, the Court of Criminal Appeals found a Confrontation Clause

argument on appeal not preserved by a hearsay trial objection. 129 S.W.3d at 535.

The same must be said of appellant’s objections based on “the form of impeachment,”

the “reading of the statement,” the “witness refusing to testify,” and “Rule 613 of the

Rules of Evidence.” Such objections did not bring to the trial court’s attention that

appellant was asserting his rights under the Confrontation Clause. Tex. R. App. P.

33.1(a)(1). This would especially be true here when it is recalled that Price was on the

witness stand at the time the objections were raised.


      Appellant argues his failure to object on Confrontation Clause grounds to the

State’s reading of Price’s statements should be excused because, though Price was on

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the stand and ostensibly subject to his cross-examination, appellant was “robbed” of

that opportunity when the trial court later had him removed from the courtroom. But

neither did appellant raise an objection to that action of the trial court. If his appellate

complaint actually is that the trial court’s error was failing to tender him the opportunity

to conduct cross-examination before having Price removed from the courtroom, and that

the error violated his Confrontation Clause rights, under the rules that govern our

review, the record must show a timely complaint made to the trial court. Tex. R. App. P.

33.1(a).   Appellant’s only objection on confrontation grounds was raised to the

admission of the transcript of Price’s punishment testimony at his trial. We see no way

the objection made at that time can fairly be applied to the State’s earlier reading of

Price’s statements while he was still on the stand. Agreeing with the State that it is not

preserved for our review, we overrule appellant’s first issue.


Issues Two and Three - Exclusion of Testimony


       In appellant’s second and third issues, he contends the trial court abused its

discretion by preventing him from presenting exculpatory evidence for the jury’s

consideration, thereby denying him due process of law under the Fifth, Sixth and

Fourteenth Amendments to the United States Constitution. U.S. Const. amends. V, VI,

XIV.


       During appellant’s case-in-chief, he called two witnesses outside the presence of

the jury. Victor Lee Herrera testified to a conversation he had with Kevin Price about a

year before appellant’s trial, while Herrera and Price were incarcerated in the Lubbock

County Jail. Herrera described his conversation with Price as follows:



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       Well, the conversation occurred because one of the other inmates had
       recognized who [Price] was and he had asked him if he was the guy that raped
       the girl. And he said he was. And I recognized that he was involved with
       [appellant’s] case and I asked him what [appellant] had to do with the case and
       he told me [appellant] didn’t have anything to do with it, that he was just trying to
       get out of trouble.
       The State did not cross-examine Herrera and the trial court did not permit the

testimony in front of the jury.


       The second witness was Jeremy Lawson, who was being held in the Lubbock

County jail at the time of appellant’s trial. Lawson told the court that during lunch at the

jail that day, he saw appellant speaking with another man. From pictures shown him on

the stand, Lawson identified the other man as Gary Wilson. Gary Wilson is Danny

Wilson’s brother, and also was involved in the burglary. Lawson said Gary Wilson was

“serving chow” and, when appellant was returned to the jail during lunch, Lawson

noticed, appellant and Gary Wilson began a conversation. Lawson said he did not hear

all their conversation, and did not hear any of what appellant said, but did overhear

Gary Wilson say to appellant that “he [knew] that [appellant] didn’t set up whatever –

whatever had went down [sic], he knew he wasn’t the one who had set it up . . . .”


       The State objected to Lawson’s testimony on the bases of hearsay and

relevance. The trial court sustained the State’s objection to hearsay, and did not permit

Lawson to testify before the jury.


       A trial court’s ruling admitting or excluding evidence is reviewed on appeal for

abuse of discretion.     Ramos v. State, 245 S.W.3d 410, 418 (Tex.Crim.App. 2008);

Montgomery v. State, 801 S.W.2d 390, 391 (Tex.Crim.App. 1990) (op. on reh’g). The




                                             8
ruling will be upheld on appeal 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.


       Hearsay is a “statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex.

R. Evid. 801(d).     Hearsay testimony is generally inadmissible at trial unless the

statement falls within a recognized exception to the hearsay rule. Tex. R. Evid. 802;

McCarty v. State, 257 S.W.3d 238, 239 (Tex.Crim.App. 2008).


       We agree with the State the trial court did not abuse its discretion in excluding

the proffered testimony of Herrera and Lawson. Appellant called Herrera and Lawson

to testify to out-of-court statements of Price and Gary Wilson, for the purpose of proving

the truth of their assertions exculpating appellant. The testimony of both was hearsay.


       Appellant does not object to the characterization of the proffered testimony as

hearsay, but argues the testimony nonetheless should have been admitted under

Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), in

exercise of his fundamental right to present a defense.           The Court in Chambers

established “no new principles of constitutional law.” “Rather,” the Court said, it held

“quite simply that under the facts and circumstances of this case the rulings of the trial

court deprived Chambers of a fair trial.”        410 U.S. at 302-03.     In Chambers, the

Mississippi trial court, under evidentiary rules in effect in that state at the time, refused

Chambers permission to cross-examine McDonald, a witness Chambers had called,

regarding McDonald’s repudiation of his sworn confession to the murder for which

Chambers was being tried.       Id. at 295-96.    The trial court also excluded hearsay

testimony of three proffered witnesses to statements McDonald had made in their
                                             9
hearing, again under evidentiary rules then in effect. Id. at 298-99. The Court found the

proffered hearsay statements “bore persuasive assurances of trustworthiness” and were

“within the basic rationale of the exception for declarations against interest.” Id. at 302. 2

Further noting that the excluded testimony was critical to Chambers’ defense, the Court

cautioned that “the hearsay rule may not be applied mechanistically to defeat the ends

of justice.” Id. at 313. Despite its conclusion that Chambers had been denied a fair trial

by the exclusion of testimony, the Court noted, that the accused, as well as the State,

“must comply with established rules of procedure and evidence designed to assure both

fairness and reliability in the ascertainment of guilt and innocence.” Id. In Miller v.

State, 36 S.W.3d 503 (Tex.Crim.App. 2001), the Court of Criminal Appeals drew from

Chambers the statement, “[a] defendant has a fundamental right to present evidence of

a defense as long as the evidence is relevant and is not excluded by an established

evidentiary rule.” 36 S.W.3d at 507 (citing Chambers, 410 U.S. at 302); see Hidrogo v.

State, No. 11-09-00310-CR, 2011 Tex.App. LEXIS 2585 (Tex.App.—Eastland April 7,

2011, no pet.) (mem. op., not designated for publication) (applying Chambers and

Miller).


           Appellant does not identify an exception to the hearsay rule applicable, or even

arguably applicable, to the testimony of Herrera and Lawson concerning the statements

of Price and Gary Wilson. As evidence of appellant’s guilt or innocence, the proffered

testimony bore weak assurances of trustworthiness, both because the jailhouse


           2
         Mississippi recognized a hearsay exception for declarations against interest,
but limited the exception to declarations against pecuniary interest. McDonald’s
statements would have been against his penal interest. Chambers, 410 U.S. at 299-
300.

                                              10
statements were made by co-defendants and because neither witness was able to give

more than the briefest summary of what Price and Wilson said. For both those reasons,

and because of the vague nature of the statements of Price and Wilson, as described

by Herrera and Lawson, the relevance of the proferred testimony is doubtful. Finally,

the testimony of Herrera and Lawson hardly can be called critical to appellant’s defense.

Kevin Price testified at trial and Gary Wilson was that day in the Lubbock County Jail,

both apparently available and able to tell the jury appellant “didn’t have anything to do

with it” and “wasn’t the one who had set it up,” if indeed such would have been their

testimony.


       For those reasons, we cannot agree appellant’s fundamental right to present a

defense was contravened by the trial court’s exclusion of Herrera’s and Lawson’s

testimony.   We find no abuse of discretion in the trial court’s ruling and resolve

appellant’s second and third issues against him.


Attorney’s Fees


       We note that by its judgment the trial court ordered appellant to repay $5317.50

paid his court-appointed attorney.     Article 26.05(g) of the Texas Code of Criminal

Procedure provides, “[i]f the court determines that a defendant has financial resources

that enable him to offset in part or in whole the costs of the legal services provided, . . .

the court shall order the defendant to pay during the pendency of the charges or, if

convicted, as court costs the amount that it finds the defendant is able to pay." Tex.

Code Crim. Proc. Ann. art. 26.05(g) (West 2011).          Key factors in determining the

propriety of ordering reimbursement of costs and fees are the defendant's financial

resources and ability to pay. Mayer v. State, 309 S.W.3d 552, 556 (Tex.Crim.App.
                                             11
2010). "Without evidence to demonstrate appellant's financial resources to offset the

costs of the legal services, the trial court erred in ordering reimbursement of appointed

attorney fees." Mayer v. State, 274 S.W.3d 898, 901 (Tex.App.--Amarillo 2008), aff'd,

309 S.W.3d at 558. The record here does not indicate the trial court had evidence

appellant had the ability to repay attorney’s fees. We conclude the evidence supporting

this portion of the judgment is insufficient. We accordingly modify the judgment to

remove the order that appellant repay $5317.50 attorney’s fees, and, having overruled

appellant’s issues, affirm the judgment of the trial court as modified.




                                                                James T. Campbell
                                                                    Justice
Do not publish.




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