            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                    NO. WR-59,939-03



                   EX PARTE TRACY LANE BEATTY, Applicant



  ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS
   IN CAUSE NO. 241-0978-04-A IN THE 241ST JUDICIAL DISTRICT COURT
                            SMITH COUNTY

              A LCALA, J., filed a concurring statement.


                              CONCURRING STATEMENT

I join this Court’s order dismissing the subsequent application for a writ of habeas corpus

filed by Tracy Lane Beatty, applicant. I conclude that, even if his case were not procedurally

barred, applicant has failed to plead facts that would adequately show that his conviction

would have been reversed on appeal had appellate counsel’s brief complained of the trial

court’s evidentiary ruling.

       Applicant’s first ground states, “[Applicant] was denied the effective assistance of

counsel on direct appeal in violation of his Sixth Amendment right to counsel.” Here,
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applicant contends that appellate counsel was ineffective by failing to complain on appeal

that the trial court erred in its admission of hearsay testimony that tended to prove the

complainant had revoked her consent for applicant to live in her home, which was evidence

of the underlying burglary used to establish capital murder. The complainant made a

statement to her neighbor indicating that she had told applicant that he must leave her home.

The State offered the neighbor’s testimony to this effect for the purpose of proving the no-

effective-consent element of the burglary offense. Therefore, it is a statement about a

statement offered for the truth of the matter asserted, or hearsay-within-hearsay. This

evidence was admissible so long as each layer of hearsay independently satisfied some

exception to the hearsay rule. T EX. R. E VID . 805 (“Hearsay within hearsay is not excluded

by the rule against hearsay if each part of the combined statements conforms with an

exception to the rule.”).      To preserve error with respect to a hearsay-within-hearsay

complaint, the trial court must be placed on notice of an objection as to each layer of

hearsay.1

       Here, there are two out-of-court statements. The first is the complainant’s statement

to applicant telling him to leave her house. The second is the complainant’s statement to her


       1
          Preservation of error regarding double-hearsay is controlled by the requirement of specific
objections and the requirement that each layer of hearsay must be admissible under an exception.
TEX . R. APP . P. 33.1(a)(1); Sanchez v. State, 354 S.W.3d 476, 485-86 (Tex. Crim. App. 2011) (citing
TEX . R. EVID . 805 and holding that hearsay-within-hearsay is inadmissible unless each part of the
combined statements falls within an exception to the hearsay rule); see also Martin v. State, 151
S.W.3d 236, 240 (Tex. App.—Texarkana 2004, pet. ref’d) (holding error not preserved where
counsel did not specifically object to embedded hearsay).
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neighbor informing her that she had told applicant to leave the house. Trial counsel objected

specifically to the second statement—the complainant’s statement to her neighbor—but

counsel did not alert the trial court that he was raising a hearsay objection as to the first

statement. The objection was “to any statement that was allegedly said to Betty McCarty

[neighbor] by Carolyn Click [complainant].”          Because trial counsel made no hearsay

objection to the admissibility of the first statement and thus failed to preserve error, appellate

counsel could not have raised that point of error on direct appeal. In light of his recognition

that error was not preserved, appellate counsel explained that trial counsel’s failure to

preserve this complaint was the reason that he did not present it on appeal. I conclude that,

because trial counsel’s hearsay objection was inadequate to preserve his complaint about the

hearsay-within-hearsay that served to prove the no-effective-consent element of burglary,

appellate counsel did not render deficient performance by failing to assert that complaint on

appeal.


       Furthermore, applicant has failed to plead adequate facts showing that, even if the trial

court had abused its discretion in admitting the evidence, this Court would have found the

admission of the evidence to be harmful in light of other evidence in the record showing that

applicant was no longer permitted to live with the complainant. For example, applicant told

someone that the complainant had asked him to move out of her home and that she had

packed a suitcase for him in an effort to kick him out. Because that evidence supports the

underlying burglary, applicant is unable to meet the second prong of Strickland that requires
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him to show that, but for counsel’s deficient performance, there was a reasonable probability

of a different outcome on appeal. See Ex parte Santana, 227 S.W.3d 700, 705 (Tex. Crim.

App. 2007).


       Because applicant has failed to plead facts that would show a likelihood of success

on the merits of any of the grounds he has presented in his subsequent application, I concur

in the Court’s judgment dismissing his application. Although I remain open to reconsidering

this Court’s precedent disallowing subsequent applications for writs of habeas corpus on the

basis of ineffective assistance of initial habeas counsel, given the present circumstances, I

do not reach that issue in this case.


Filed: October 14, 2015


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