Affirmed and Opinion filed June 20, 2019.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00037-CR

                   SHAUN EVERTTE CRAVEN, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 337th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1481381

                                   OPINION

      Appellant Shaun Evertte Craven appeals the trial court’s judgment
adjudicating guilt based on violations of the terms and conditions of his deferred
adjudication community supervision. Appellant asserts that the trial court abused
its discretion in adjudicating guilt following a hearing at which the court permitted
evidence appellant contends violated his right under the Sixth Amendment to be
confronted with the witnesses against him. Concluding that appellant failed to
preserve the issue for appellate review, we affirm.
                    I. FACTUAL AND PROCEDURAL BACKGROUND

         Appellant pleaded “guilty” to possession of less than a gram of
methamphetamine. The trial court deferred adjudication and placed appellant on
community supervision for a period of two years. During that period, the State
moved to adjudicate guilt on the basis of appellant’s alleged violations of
community-supervision terms and conditions, and, in particular, “[f]ailing to avoid
injurious and vicious habits” such as the use of controlled substances, including
methamphetamine. In the motion the State alleged that controlled substances were
found “in a urine sample taken from [appellant] on December 14, 2016 at the
Harris County Community Supervision and Corrections Department.”

         The trial court held a hearing on the State’s motion to adjudicate appellant’s
guilt.    In support of its failed-drug-test allegation, the State presented three
witnesses and offered two exhibits pertaining to appellant’s December 14, 2016
urine analysis.

         At the end of the hearing the trial court stated that it found the alleged
violations concerning appellant’s use of controlled substances to be true. On the
same day, the trial court signed a written judgment adjudicating appellant’s guilt
for the original possession offense. In the judgment the trial court found that
appellant violated the terms of his community supervision by committing an
offense against the State of Texas, failing to avoid injurious or vicious habits,
failing to report to the community-supervision officer, and failing to provide proof
of employment. The trial court assessed appellant’s punishment at two years’
confinement.

                               II. ISSUE AND ANALYSIS

         In his sole issue on appeal, appellant asserts that the trial court abused its


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discretion in granting the State’s motion to adjudicate guilt because the only
evidence offered in support of the motion violated his right under the Sixth
Amendment’s Confrontation Clause to be confronted with the witnesses against
him, as explained in Bullcoming v. New Mexico. See 564 U.S. 647, 663, 131 S. Ct.
2705, 2716, 180 L.Ed.2d 610 (2011) (finding a Confrontation-Clause violation
where defendant was unable to cross examine a forensic analyst who performed or
knew about the particular blood-alcohol test or testing process employed).        As a
threshold matter, we consider whether appellant preserved this error in the trial
court.

         For an accused to preserve error as to an alleged violation of his right under
the Confrontation Clause to be confronted with the witnesses against him, the
accused must make a timely objection with enough specificity to make the trial
court aware of the complaint, unless the specific grounds are apparent from the
context. See Tex. R. App. P. 33.1; Linney v. State, 401 S.W.3d 764, 772 (Tex.
App.—Houston [14th Dist.] 2013, no pet.) (“The Constitution does not relieve a
defendant from the obligation to comply with established rules of procedure and
evidence designed to assure both fairness and reliability in the ascertainment of
guilt and innocence.”). Appellant voiced two objections during the hearing: (1) a
hearsay objection to the admission of the urine-analysis results, and (2) during his
closing statement appellant pointed to a recent United States Supreme Court case
and stated that his Confrontation-Clause rights were violated.

         Hearsay Objection

         When the State offered the lab results into evidence, appellant’s counsel
stated “I would just object that it’s hearsay, Judge. It's coming from a lab
somewhere that this witness has no personal knowledge of.” The complaint raised
on appeal must comport with the objection raised at trial. Wilson v. State, 71

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S.W.3d 346, 349–50 (Tex. Crim. App. 2002). Appellant does not complain about
hearsay on appeal. Nothing about appellant’s objection would have alerted the
trial judge to his complaint on appeal that admitting the report violates appellant’s
rights under the Confrontation Clause or principles “under Bullcoming.”          See
Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004) (recognizing that
objections based on hearsay and on the Confrontation Clause are separate
objections). Because appellant failed to raise a Confrontation-Clause objection at
the time the trial court admitted the lab report into evidence, appellant waived this
complaint. See id.; Wilson v. State, 71 S.W.3d at 349.

      Closing Remarks Objection

      To preserve error on Confrontation-Clause grounds, the objector must voice
the complaint as soon as the basis for the objection becomes apparent. Torres v.
State, 424 S.W.3d 245, 255–56 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).
Appellant’s counsel stated in closing remarks:

      Judge, I would urge you to make a finding of not true. The only
      allegation they presented any evidence on was the one drug test that
      was testified to, the one on December 14, 2016. All they presented
      was hearsay. The witness called is the custodian of the records. I
      asked him if he did any of the -- did he receive the package? Did he
      analyze it? Did he make these entries? He did nothing on that, Judge.
      They presented pure hearsay. And I would object to it under
      Bullcoming. I can't cross him about any of the matters concerning the
      validity or the accuracy of the drug testing in the one allegation that
      they presented to the Court; so I would ask, Your Honor, for a finding
      of not true.
      Appellant did not raise his Confrontation-Clause objection during the
testimony of any of the witnesses, including the custodian of records mentioned in
appellant’s counsel’s closing remarks. Appellant first objected on Confrontation-
Clause grounds during closing argument, after the close of the evidence. At this


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juncture, three witnesses already had testified: (1) Mario Oliva, the urine-analysis
monitor at the Harris County Community Supervision and Corrections Department
who collected appellant’s sample; (2) Tom Freijo (mentioned in the closing
remarks), who was both the lab’s records custodian and the director of the lab that
accepted and analyzed appellant’s urine sample; and (3) Angelica Salazar, the
probations officer who reviewed the lab results, determined that the results
indicated a violation of appellant’s community supervision, and submitted a form
showing violations to the court. Each witness testified about their respective links
in the chain of custody, basis of knowledge, and their involvement in the process.
Freijo and Salazar both testified, without objection, that appellant’s urine analysis
was positive for delta-9-carboxy-tetrahydrocannabinol (marijuana), amphetamine,
and methamphetamine. Though appellant’s counsel took issue with Freijo’s basis
of knowledge in the closing remarks, appellant made no objection to the evidence
when the witness testified.

      Appellant’s counsel did not raise any objection based on Bullcoming or the
Confrontation Clause until after the evidence had closed. Presuming for the sake
of argument that appellant’s counsel’s remark during closing argument was
intended to serve as an objection, and was not purely rhetorical, it was too late for
the trial judge to do anything about it. See Torres v. State, 424 S.W.3d at 256
(holding that defendant failed to preserve error on Confrontation-Clause grounds
because he did not object to the complainant’s testimony while she was on the
stand); see also Ferree v. State, 416 S.W.3d 2, 7 (Tex. App.—Houston [14th Dist.]
2013, pet. ref’d) (concluding appellant failed to preserve error on Confrontation-
Clause grounds when no objection was made until after State rested). In his
closing remarks, appellant’s trial counsel even acknowledged the moments during
Freijo’s cross-examination when it became apparent that the witness was unable to


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answer for certain aspects of the validity and accuracy of the drug testing. To have
preserved this complaint, appellant would have to have objected when the witness
gave testimony about the report findings. See e.g., Lee v. State, 418 S.W.3d 892,
894–95 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd). Because appellant
failed to raise his Confrontation-Clause objection at the time the lab report was
offered into evidence, appellant has waived this complaint on appeal. See Torres
v. State, 424 S.W.3d at 256; Ferree v. State, 416 S.W.3d at 7. Accordingly, we
overrule appellant’s sole issue.

      We affirm the trial court’s judgment.




                                      /s/       Kem Thompson Frost
                                                Chief Justice



Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan.
Publish — TEX. R. APP. P. 47.2(b).




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