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                                     COURT OF APPEALS
                  TWELFTH COURT OF APPEALS DISIRICT OF TEXAS
                                            JUDGMENT

                                             MARCH 31, 1995


                                          NO. 12-93-00042<:R


                                         JEFFERY LYNN WARD,
                                                Appellant
                                                    V.

                                         THE STATE OF TEXAS,
                                                 Appellee


                               Appeal from the Second Judicial District Court
                               of Cherokee County, Texas. (Tr.Ct.No. 11965)

                           THIS CAUSE came to be heard.on (he appellate record and briers             (
      filed herein, and the same being inspected, it is the opinion or this Court that there was no
      error in the judgment.

                           It is therefore ORDERED, ADJUDGED and DECREED that the
     judgment of the court below be in all things affirmed and that this decision be certified to
      the court below for observance.

                          Tom B. Ramey, Jr., Chief Justice.
                          Holcomb, G, J., not participating.
<8>,




                                       NO. 12-93-00042-CR

                              IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS' DISTRICT
                                          TYLER, TEXAS

        JEFFERY LYNN WARD,                            § APPEAL FROM n/E SECOND
        APPELLANT


        V'                                            § JUDICIAL DISTRICT COURT OF
        THE STATE OF TEXAS,
        APPELLEE                                      § CHEROKEE COUNTY, TEXAS

               Jeffery Lynn Ward ("Ward") appeals his conviction on two counts of aggravated
        sexual assault and one count of possession of child pornography. After apica of "not guilty,"
        he was tried before a jury, which returned a verdict of "guilty" on all three counts. Ward
       raises one point of error in this appeal. We will affirm the conviction.
               Ward was charged with one count of aggravated sexual assault against each of two
       minor female children, J.S. and T.B., occurring on or about July 14, 1992. Ward's sole point
       of error addresses a problem that arose during trial when T.B., then seven years old,
       became, in the course of her testimony, unwilling or unable to answer further questions
       about the charged assault. She had previously testified that she and J.S. had fallen asleep
       at Ward's residence, and, to a question about what happened, responded "I don't remember
       that question." The State then requested, and was given, permission ask leading questions,
       and T.B. testified that Ward did something-she didn't know what-to J.S. in the bathroom.
       To the State's questions about what Ward did to her, T.B. repeatedly refused to answer, and
       she indicated to the judge that she didn't want to answer that question. Observing that
       "She's about to break down right now," the trial judge nevertheless allowed the Slate to
       again question her:
        Q:       |T.B.J, still ready to talk about this?
        A:       (no response)
        Q:       [T.B.], can I ask you just a few more questions?
        A:       Okay.
        Q:       (T.B.], did Jeff [Wani] touch you?
       A:        Yes.
       Q:        Where did he touch you?
       A:        I don't want to answer that question.

The State then passed her, subject to recall, and Ward's counsel announced he would not
cross examine "in light of this young lady's feelings and in light of the stress and trauma that
she is obviously going through...."
       Later in the trial T.B. was recalled by the State, and again she refused to answer
questions regarding what Ward might have done to her. The State then moved to have
admitted into evidence the transcript of T.B.'s testimony given in a prior bond revocation
hearing. Ward's counsel objected on a number of grounds, and the trial judge delayed his
ruling till the next day. The next morning Ward's counsel again vehemently objected to the
admission of the bond hearing transcript. In the course of discussing this issue, the court
asked the State about the defense's right to admit aJJ of the bond hearing transcript into
evidence under the rule of optional completeness. The State agreed that, with some
exceptions, the whole transcript could come in, and Ward's counsel then stated:

       Judge, I have no objection to allowing this entire document to be introduced',] the excising of
       Mr. Ward's problem ofthe Sheriff being given a prior conviction that's now on appeal, and any
       reference in that, that Jeff Ward has had any prior conviction. I welcome this to be Introduced
       if that is the situation.



Thejudge then asked Ward's counsel whether, ifthe references to prioroffenses were taken
out, "...you'd have no objection?" Ward's counsel replied "I have no~I can live with it..."
After the jury was brought into court, and the transcript offered by the State, the court
asked for objections, and defense counsel stated, "we have no objection, Judge, to the entire
transcript being admitted." Ward now challenges the admission ofthis transcript as his sole
point of error, arguing that it was erroneous both under the rules of evidence and the state
 and federal constitutions.1
         Ward first argues that the transcript was inadmissible hearsay. The relevant portions
of the governing rule provide that:

         (a)      DcflnlUon of Unavailability. "Unavailability as a witness" includes situations in which
                  the declarant:




                  (2)      persists in refusing to testify concerning the subject matter of his statement
                           despite an order of the court to do so; or

                  (3)      testifies to a lack of memory of the subject matter of his statement.-..



         (b)      Hearsay Exceptions. The following are not excluded if the declarant is unavailable as
                  a witness:

                  (1)     Former Testimony. Testimony given as a witness at another hearing of the
                          sameor a different proceeding, if the party against whom the testimony is now
                          offered, had an opportunity and similar motive to develop the testimony by
                          direct, cross, or redirect examination.


TEX. R. CRIM. EVID. 804. "Whether evidence comes in under Rule 804(b)(1) is a question
for the trial court to resolve, reviewable only under an abuse of discretion standard." Coffin
v. State, 885 S.W.2d 140, 149 (Tex. Cr. App. 1994).
        The record is clear that T.B. was "unavailable" as defined by the rule, since she first
suggested she couldn't remember, then persisted in refusing to testify about the incident.2
Ward argues, however, that it was improper to use testimony from a bond revocation


    1Ward also makes reference, In his brief, to a later, post-judgment evidentiary hearing, in which T.B.
recanted much ofher former testimony. Though troubling, such testimony has no bearing on the point oferror
before us today, whether the trial judge erred in admitting T.B.'s former testimony from the bond hearing. Even
if those later proceedings were somehow relevant to the question before us, we note that the supplemental
transcript and statement of facts relevant to this issue were never filed, because no motion for leave to file them
out of time was made, despite notices of such requirement mailed to counsel on November 4, 1993 and
December 7,1993.

   1The rule requires that the trial court order the witness to answer, and the judge here tried as best he could
to getT.B. to answer thequestions. Though, with an adult, onewould expect the judge to threaten a recalcitrant
witness with sanctions, we don't believe that the court Is required to threaten a young child with contempt to
satisfy the requirement of an order.
 hearing, since he didn't have, in such proceeding, a similar motive to develop T.B.'s
 testimony.

         Rule 804(b)(1) does not require that in order for prior testimony to be admitted as an
         exception to the hearsay rule the opponent of the evidence have had an identical motive 10
         challenge the testimony at the prior proceeding as he now has at trial. It requires only that he
         have had a "similar" motive. "(Njeither the form of the proceeding, the theory of the case, nor
         the nature of the relief sought need be the same." (citation omitted). "(Ojnly the particular
         issue as to which the testimony was first offered must be substantially similar to die issue upon
         which offered in the current action." (citations omitted). As with opportunity, similar motive
         vel non must be determined on a case-by-case basis, according to the particular facts and
         circumstances.


Coffin v. State, 885 S.W.2d at 147. Ward argues that the only issue at the bond hearing was
the likelihood that he would commit an offense while free on bail, not his guilt or innocence
on this charge. But evidence that an accused did in fact commit a newly-charged offense
while on bail may be the best, and is sometimes the only, evidence considered in
determining whether he is likely to commit an offense while free on bail. See Putnam v.
State, 582 S.W.2d 146, 151 (Tex. Cr. App. 1979). And an examination of the evidence and
argument at the bond hearing demonstrates that, however distinct its purpose from that of
a trial on the merits, the central disputed factual issue, whether Ward in fact sexually
assaulted the two complainants, was identical in both proceedings, with Ward's interest in
each to rebut such allegations. Our conclusion that Ward's counsel in the bond hearing did
in fact have an opportunity and similar motive to develop T.B.'s testimony is supported by
the Coffin decision, which held that the defendant's counsel had, for Rule 804 purposes, a
similar motive to examine a witness in a prior hearing to certify a juvenile as an adult. We
therefore hold that the trial court did not abuse its discretion in allowing this earlier
testimony into evidence as an exception to the rule against hearsay.
        Ward also argues that, even if the admission of this testimony was allowed under the
rules of evidence, its use violated the confrontation clause of the Texas and U.S.
Constitutions.3 TEXAS CONSTITUTION, art. I, § 10. U.S. CONSTITUTION, Amendment Six.


    sAlthough the court of criminal appeals has observed that the literal language of the Texas Constitution Is
"susceptible to a more affirmative and vigorous interpretation than the comparable confrontation clause of the
Sixth Amendment," Long v. State, 742 S.WJd 302, 309 fn.9 (Tex. Cr. App. 1987), overruled on other gmundr,
  He does not, however, cite any cases in which testimony such as that at issue here was
 •excluded because of a violation of the confrontation clause.
           The U. S. Supreme Court has recognized that

          "the Confrontation Clause reflects apreference for face-to-face confrontation at trial," (citation
          omitted), a preference that "must occasionally give way to considerations of public policy and
          the necessities of the case."


 Maryland v. Craig, 497 U.S. 836,849 (1990)(emphasis in original). It has also acknowledged
 that


          a State's interest in the physical and psychological well-being of child abuse victims'may be
          sufficiently important tooutweigh, at least in some cases, a defendant's right to face his or her
          accusers in court.



 Ibid, at 853. We thus initially note that there is some flexibility in judging a State's attempts
 to accommodate the competing values of promoting confrontation and protecting child
 witnesses.

        With respect to hearsay, the U.S. Supreme Court, noting that a literal application of
 the language of the confrontation clause would exclude all hearsay, has held that

          when a hearsay declarant is notpresent for cross-examination at trial, theConfrontation Clause
          normally requires a showing that he is unavailable. Even then, his statement is admissible only
         if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case
         where the evidence falls within a firmly rooted hearsay exception:             '"" >            ^

Ohio v. Roberts, 448 U.S. 56, 66 (1980). There is no question that T.B. was "unavailable" at
the time of trial, as that term is properly understood. As we discussed above, the use of her
prior testimony was proper under the exception to the rule against hearsay codified in the
Texas Rules of Criminal Evidence. And there can be no serious question that the use of

Footnote continued.


Briggt v. State, 789 S.W.2d 918,924 (Tex. Cr. App. 1990), in practice, die Texas courts have followed the same
standards declared by the VS. Supreme Court in deciding constitutional issues on diis subject. Gon&ks v State,
818 S.W2d 756,764 (Tex. Cr. App. 1991). Wattsy. State, 856 S.W2d 246 (Tex. App. -Beaumont 1993, no pet.).
We will therefore analyze Ward's claim of constitutional infirmity under the single standard utilized by both
jurisdictions.
+0.   <Q'ZAi -




                  prior testimony is a firmly established exception to the rule against hearsay. See Potts v.
           • State, 26 Tex. App. 664, 14 S.W. 456 (1883), amJOther English and American ras^ ritPH in
                 Annotation: "Use in a criminal case of testimony given on former trial, or preliminary
                 examination, by witnesses not available at present trial," 15 A.L.R. 495 (1921). The use
                 of this prior testimony, then, did not violate the Confrontation Clauses contained in either
                 the Texas or federal constitution.

                         We further agree with the State that, even if this prior testimony were inadmissable,
                 any objection to it was waived. As set out above, though Ward initially opposed admission
                 of this testimony, he seems to have changed his mind with the prospect of having other
                 testimony from the hearing admitted as well. And the testimony, when offered by the State,
                 was admitted without objection. Failure to object to inadmissible hearsay waives the right
                 to complain of its admission on appeal. Babers v. State, 834 S.W.2d 467, 471 (Tex. App. -
                 Houston [14th Dist.] 1992, no pet.). Similarly, the right to raise a violation of one's
                 constitutional right to confront witnesses will be waived if no objection is made to the
                 claimed violation at trial, even if a hearsay objection is lodged. Cofieldv. State, 857 S.W.2d
                 798, 804 (Tex. App. - Corpus Christi 1993), off' d, _ S.W.2d _.
                        Ward's sole point oferror is overruled. The judgment ofthe court below is affirmed.




                                                                              TOM B. RAMEY. JR.
                                                                                 Chief Justice


             Opinion delivered March 31, 1995.
             Holcomb, C, J., not participating.




                                                       PUBLISHED


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