




02-10-490-CR








 
 
 
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 02-10-00490-CR
 
 



Demarkous Clay


 


APPELLANT




 
V.
 




The State of Texas


 


STATE



 
 
----------
FROM THE 211th
District Court OF Denton COUNTY
----------
OPINION
----------
Appellant
Demarkous Clay challenges the trial court’s decision to proceed to adjudication
of the offense of burglary of a habitation and the resulting ten-year
sentence.  Appellant argues that the trial court abused its discretion by
admitting records from Louisiana concerning his community supervision, that the
admission of those records violated his Sixth Amendment right to confrontation,
and that the trial court erred by refusing to recognize his economic defense to
his failure to pay restitution of $275 per month.  We affirm.
Background
Facts
In
2007, a Denton County grand jury indicted appellant for burglary of a
habitation.[1]  In 2008, appellant pled
guilty, and the trial court placed him on ten years’ deferred adjudication
community supervision.  The order of deferred adjudication contained many
conditions, including that appellant report monthly in person to his community
supervision officer, pay $32,000 in restitution at the rate of $275 per month,
complete a “drug/alcohol evaluation through an agency which offers such services”
within thirty days of the order, and participate in a theft diversion class at
the direction of his community supervision officer.
In
2010, the State filed a motion to proceed with adjudication of appellant’s
guilt, alleging that appellant had violated each of the conditions described
above, among others.  Appellant retained counsel.  At the contested hearing,
Rhett Wallace, an employee of the Denton County probation department, testified
that in February 2008, appellant received a copy of his community supervision
conditions and that, on the same day, he requested that his community
supervision be transferred to Louisiana, and it was.  Wallace then testified to
appellant’s failure to meet some of the conditions of his community supervision. 
Much of Wallace’s testimony was based on information that had been generated by
Louisiana officials and later sent to Denton County.  Appellant objected that
Wallace’s testimony was based on hearsay; in response, the State offered the raw
records from Louisiana that purport to be community supervision records
relating to appellant, and the State asserted the business records exception as
the basis for admission.[2]  Appellant argued that
although Wallace was a custodian of probation records for Denton County, the Louisiana
documents were inadmissible as hearsay because Wallace had no knowledge as to how
the documents were generated and could not confirm the trustworthiness or
reliability of the records.  The trial court overruled appellant’s objection and
admitted the exhibit containing the Louisiana records “as a business record and
a government record.”[3]
At
the end of the contested revocation hearing, the trial court found that
appellant had violated each of the conditions of his community supervision
described above.  The court, therefore, revoked appellant’s community
supervision, adjudicated him guilty of burglary of a habitation, and sentenced
him to ten years’ confinement.  Appellant brought this appeal.
The
Forfeiture of Appellant’s Complaints
          In
three issues, appellant contests the trial court’s decision to revoke his
community supervision and adjudicate him guilty.  Appellant’s first two issues
depend on the correctness of the trial court’s admission of the Louisiana
records.
          As
we explained in Cherry v. State,
We review an order revoking community supervision under
an abuse-of-discretion standard.  In a revocation proceeding, the State must
prove by a preponderance of the evidence that the defendant is the same
individual who is named in the judgment and order of probation, and then must
prove that the defendant violated a term of probation as alleged in the motion
to revoke. 
          In a community supervision revocation hearing,
the trial judge is the sole trier of fact and determines the credibility of the
witnesses and the weight to be given their testimony.  We review the evidence
in the light most favorable to the trial court’s ruling.  If the State fails to
meet its burden of proof, the trial court abuses its discretion in revoking the
community supervision.
215
S.W.3d 917, 919 (Tex. App.—Fort Worth 2007, pet. ref’d) (citations omitted).  “Proof
by a preponderance of the evidence of any one of the alleged violations
of the conditions of community supervision is sufficient to support a
revocation order.”  Cantu v. State, 339 S.W.3d 688, 691–92 (Tex. App.—Fort
Worth 2011, no pet.).
          Appellant
contends that the trial court abused its discretion by revoking his community
supervision because the revocation was based on information contained in the
Louisiana records, which appellant asserts were inadmissible.  To preserve a
complaint for our review, however, a party must have presented to the trial
court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the
request, objection, or motion.  Tex. R. App. P. 33.1(a)(1); Layton v. State,
280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009).  Further, the trial court must
have ruled on the request, objection, or motion, either expressly or implicitly,
or the complaining party must have objected to the trial court’s refusal to
rule.  Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341
(Tex. Crim. App. 2004).  A reviewing court should not address the merits of an
issue that has not been preserved for appeal.  Ford v. State, 305 S.W.3d
530, 532 (Tex. Crim. App. 2009).  Preservation of error is a systemic
requirement that this court should review on its own motion.  Archie v.
State, 221 S.W.3d 695, 698 (Tex. Crim. App. 2007).
Appellant
objected to the admissibility of the Louisiana records, and as part of that
objection, appellant’s counsel had a lengthy exchange with the trial court
concerning whether the records were excepted from hearsay under rule of
evidence 803(6).  We have no doubt that this objection met the requirements of making
the trial court aware of appellant’s complaint and sufficiently explaining the
basis for it.  See Ford, 305 S.W.3d at 533.  But before and after the
exchange, appellant did not object to many of the State’s questions, and much
of Wallace’s testimony, concerning the contents of the records.  For example,
before the exchange, Wallace testified without objection, from information
contained in the records, that appellant had reported to community supervision
in Louisiana and that he had violated condition (b) of his community
supervision, which required him to avoid the use of illegal narcotics,
barbiturates, or controlled substances.  After the exchange, Wallace testified
on direct examination, based on data in the records, that appellant had tested
positive for cocaine in June 2009, that he had failed to report to the
Louisiana probation department during several months from 2008 through 2010, and
that he had not completed an alcohol evaluation or a theft diversion class.[4] 
Wallace also testified about some facts contained in the Louisiana records on
cross-examination by appellant’s counsel.
With
exceptions that do not apply here, to preserve error, a party must continue to
object each time the objectionable evidence is offered.[5] 
Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (citing Ethington
v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)); Fuentes v. State,
991 S.W.2d 267, 273 (Tex. Crim. App.), cert. denied, 528 U.S. 1026
(1999).  A trial court’s erroneous admission of evidence will not require
reversal when other such evidence was received without objection, either before
or after the complained-of ruling.  Leday v. State, 983 S.W.2d 713, 718
(Tex. Crim. App. 1998) (explaining that Texas applies the “futility rule,”
meaning that despite a trial court’s ruling that evidence is admissible, a party
must keep making futile objections on pain of waiver).  This rule applies
whether the other evidence was introduced by the defendant or the State.  Id.
The
Texarkana Court of Appeals analyzed an error preservation issue similar to the
one presented in this case in Perry v. State, 957 S.W.2d 894 (Tex.
App.—Texarkana 1997, pet. ref’d).  During Perry’s trial for criminal
nonsupport, the trial court admitted, over Perry’s hearsay objection, an
exhibit containing a summary of child support that had accrued and payments
that were due.  Id. at 896.  An employee of the attorney general’s
office then testified, without objection, that the summary showed that Perry
was $16,650 in arrears.   Id.  The Texarkana court held that the
testimony about the exhibit after its admission forfeited any alleged error,
explaining,
A party desiring to complain about particular evidence
must object each time that evidence is offered, or the objection is waived.  Although
Perry objected to the admission of the calculation summary report when it was
offered by the State, he did not object when the witness testified about the
contents of the report.  Thus, he did not preserve error.
Id.  (citations omitted).
          Our
own court recently reached the same conclusion under similar facts.  See
Sikes v. State, No. 02-10-00029-CR, 2011 WL 4711998 (Tex. App.—Fort Worth
Oct. 6, 2011, no pet.) (Dauphinot, J.) (mem. op., not designated for
publication).  Sikes argued that a trial court abused its discretion by
admitting a letter that he wrote to his father; Sikes claimed that the letter
was hearsay and was not relevant.  Id. at *6.  At trial, Sikes had
objected to the admission of the letter, but when a witness later read the
contents of the letter to a jury, Sikes failed to object again.  Id.  We
noted that Sikes had “neither requested nor received a running objection to the
evidence,” and held,
          To preserve error, a party must continue to
object each time the objectionable evidence is offered.  A trial court’s
erroneous admission of evidence will not require reversal when other such
evidence was received without objection, either before or after the
complained-of ruling.  This rule applies whether the other evidence was
introduced by the defendant or the State.  Consequently, . . . [Sikes]
forfeited any error in the admission of the letter . . . .
Id.
          Thus,
because Wallace provided testimony about the Louisiana records without
objection before and after appellant’s objection to the admission of the
records and because appellant failed to obtain a running objection,[6]
we conclude that he forfeited his objection to the records’ admission.[7] 
See Martinez, 98 S.W.3d at 193; Perry, 957 S.W.2d at 896; see
also Ratliff v. State, 320 S.W.3d 857, 861 (Tex. App.—Fort Worth 2010, pet.
ref’d) (“If the defendant waits until the State offers the evidence at trial,
the objection to the evidence must be made before a witness gives substantial
testimony about it.”); Mai v. State, 189 S.W.3d 316, 324 (Tex. App.—Fort
Worth 2006, pet. ref’d) (“We hold that Appellant failed to preserve error . . .
by not repeating the objection again each time the State asked Officer Richie
to read from or refer to the transcript.”).  Based on the facts contained in
those documents and Wallace’s unobjected-to testimony about them, we hold that
the trial court did not abuse its discretion by revoking appellant’s community
supervision and adjudicating him guilty.  See Cherry, 215 S.W.3d at
919.  We overrule appellant’s first two issues.
          Because
the State’s exhibit and Wallace’s testimony support several violations of
appellant’s community supervision, and because only one violation is sufficient
to support the trial court’s revocation decision, we need not address
appellant’s third issue, in which he contends that revocation on the ground
that he failed to pay restitution when not having sufficient ability to do so
was improper.  See Tex. R. App. P. 47.1; Moore v. State, 605
S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980).
Conclusion
          Having
overruled appellant’s dispositive issues, we affirm the trial court’s judgment.
 
 
 
TERRIE LIVINGSTON
CHIEF JUSTICE
 
PANEL:  LIVINGSTON, C.J.; DAUPHINOT, J.; and WILLIAM
BRIGHAM (Senior Justice, Retired, Sitting by Assignment).
 
DAUPHINOT, J., filed a dissenting opinion.
 
PUBLISH
 
DELIVERED: 
February 16, 2012





 
 
 
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 02-10-00490-CR
 
 



Demarkous Clay


 


APPELLANT




 
V.
 




The State of Texas


 


STATE



 
 
----------
FROM THE 211th
District Court OF Denton COUNTY
----------
DISSENTING
OPINION
----------
Clearly,
the Louisiana records and testimony about them were inadmissible, and the trial
court abused its discretion by admitting the records and testimony into evidence. 
Without those records and testimony about them, the State failed to sustain its
burden of proof.  Consequently, the trial court abused its discretion by
adjudicating Appellant’s guilt.  I would, therefore, reverse the trial court’s
judgment and remand this case to the trial court.
The
majority, however, holds that Appellant forfeited error by not objecting to
each and every reference to the complained-of documents.  I must respectfully
dissent from the majority opinion because I believe the majority places form
over substance.
At
the adjudication hearing, Rhett Wallace of the Denton County Community
Supervision and Corrections Department (DCCSCD) testified that Appellant’s
community supervision had been transferred to Louisiana at Appellant’s request.
 Wallace then testified about Appellant’s failure to meet some of the
conditions of his community supervision.
Much
of Wallace’s testimony was based on information purported to have been sent to
his department from the Interstate Commission for Adult Offender Supervision
(ICAOS); the information purported to be information that ICAOS had received
from the State of Louisiana.  Appellant objected that Wallace’s testimony was
based on hearsay; in response, the State offered the raw records, purportedly from
Louisiana, that purport to be community supervision records relating to
Appellant and asserted the business records exception as the basis for
admission.  The records contain no affidavit from the custodian of the records,
and Wallace, who testified that he was the DCCSCD custodian of records and that
he received the records from Louisiana, was unable to testify who had made the
record entries, whether the person had personal knowledge of the contents of
the entries, whether the entries were made at or near the time of the events
recorded, or indeed anything about how the records were made or the source of
the information.
Appellant
argued below that although Wallace was the custodian of records for DCCSCD,
some of the information in the file purportedly had been provided by Iberia
Parish in Louisiana, and Wallace had no knowledge as to the trustworthiness or
reliability of that information.  The trial court overruled the objection and
admitted the records in the file “as a business record and a government record.”
In
order to be admissible as a business record, there must be evidence that the
“memorandum, report, record, or data compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, [was] made at or near the time by, or from
information transmitted by, a person with knowledge” and “kept in the course of
a regularly conducted business activity” when it was “the regular practice of
that business activity to make the memorandum, report, record, or data
compilation, all as shown by the testimony of the custodian or other qualified
witness, or by affidavit that complies with Rule 902(10) [of the rules of
evidence].”[8]
The
documents were also admitted as a public record.  Rule 803(8) provides an
exception to the hearsay rule for public records and reports, that is, 
[r]ecords, reports,
statements, or data compilations, in any form, of public offices or agencies
setting forth:
(A) the activities of
the office or agency;
(B) matters observed
pursuant to duty imposed by law as to which matters there was a duty to report,
excluding in criminal cases matters observed by police officers and other law
enforcement personnel; or
(C) in civil cases as
to any party and in criminal cases as against the state, factual findings
resulting from an investigation made pursuant to authority granted by law;
unless the sources of
information or other circumstances indicate lack of trustworthiness.[9]
Before
a public record can be admitted as an exception under the hearsay rule, the
party offering the document must show that it is authentic.[10] 
A document is considered authentic if a sponsoring witness is competent to
vouch for its authenticity and vouches for its authenticity, or if the document
meets the requirements of self-authentication in rule 902 of the rules of
evidence.[11]  As our sister court in
Dallas explained, albeit in an unreported case, 
Benavides did not, and could not, testify that he or any probation
officer had any knowledge on how Heine prepared the letter or whether she had
personal knowledge of the events she recorded in the letter.  Moreover, because
a government office
collects a letter in its files does not give the letter sufficient “indicia of
reliability” for purposes of admissibility under the business record exception to the hearsay
rule.  Because the State did not authenticate the Heine letter as a business
record exception to the hearsay rule and no evidence established the
reliability or trustworthiness of the facts described in the letter, we
conclude the letter was inadmissible hearsay.[12]
The documents in question in
the case now before this court did not satisfy the requirement of reliability
to meet either the business record exception or the public record exception. 
The documents were neither authenticated nor self-authenticating.  No clerk or
any other person had certified them as public documents.  They were just a
stack of papers that nobody could or did vouch for, except to say that they had
been received and were part of the Denton County file.  Anyone can place any
kind of letterhead on anything, but having some anonymous person designate a
piece of paper as a public document does not convert it into a public document.
Because
the State laid no predicate to show the reliability of the documents purportedly
from Louisiana, the trial court abused its discretion by admitting them, whether
as business records or government documents.
Appellant’s
objections to the documents purporting to come from Louisiana and to the
testimony about those documents take up fifteen pages in the reporter’s record. 
The majority calls this waiver, perhaps because Appellant did not use the magic
word “suppression.”  As we are all aware, a defendant is not required to
continue to object to evidence objected to in a motion to suppress that is
overruled.[13]
The
purpose of an objection is merely to call to the trial court’s attention the
reason a document, a piece of evidence, or testimony is not admissible.  As the
Texas Court of Criminal Appeals has repeatedly stated,
To
properly preserve an issue concerning the admission of evidence for appeal, “a
party’s objection must inform the trial court why or on what basis the
otherwise admissible evidence should be excluded.”  However, a party need not
spout “magic words” or recite a specific statute to make a valid objection.  References
to a rule, statute, or specific case help to clarify an objection that might
otherwise be obscure, but an objection is not defective merely because it does
not cite a rule, statute, or specific case.  As this Court stated in Lankston
v. State,
Straightforward
communication in plain English will always suffice.  . . . [A]ll
a party has to do to avoid the forfeiture of a complaint on appeal is to let
the trial judge know what he wants, why he thinks himself entitled to it, and
to do so clearly enough for the judge to understand him at a time when the
trial court is in a proper position to do something about it.
The
objection must merely be sufficiently clear to provide the trial judge and
opposing counsel an opportunity to address and, if necessary, correct the
purported error.  In making this determination, Lankston states that an
appellate court should consider the context in which the complaint was made and
the parties’ understanding of the complaint at the time.[14]
We have before us a revocation hearing based
on a set of documents purporting to have come from a probation department in
Louisiana.  Revocations are heard by a trial court and never by a jury. 
Although Appellant never used the magic word “suppress,” he clearly, and at
length, objected to the admission of the documents and to any testimony about
the documents and their contents.  Once the trial court overruled Appellant’s
objections, the documents were in evidence.  Once the trial court ruled that Wallace
would be allowed to testify from those documents, he was going to be allowed to
testify from the documents.  This is not a case in which the appellant stated
that he had no objection either to the documents or to the testimony.  Nor is
this a case in which the State offered the same evidence through a different
source.
The majority suggests that Appellant should
have filed a pretrial or pre-hearing motion to suppress.  A motion to suppress
is merely a specialized objection that allows a defendant in a criminal case to
object to the admission of evidence either pretrial or during trial, to have
his objection heard outside the presence of the jury, and to preserve his
complaint without having to object before the jury.[15] 
It also affords opposing counsel an opportunity to remove the objection or
supply other evidence.[16]
Of
course, a motion to suppress may be offered in the form of a written motion
filed pretrial or during trial, or it may be made orally in the form of an
objection heard outside the presence of the jury.  But a community supervision
revocation hearing has no jury.  Does the majority suggest that when there is
no jury only a pretrial motion to suppress will preserve a defendant’s
objection to evidence?  Does the majority really suggest that either the trial
court or the prosecutor was not aware of Appellant’s complaint?  Does the
majority really suggest that any trial court hearing a motion to revoke community
supervision must be burdened by defense counsel jumping up and down like a
Jack-in-the-Box at each mention of the documents complained of by the only
witness to testify for the State, the very same witness whose testimony had
been objected to by the defendant during the fifteen pages of objection?
After
the trial court overruled Appellant’s objections, Wallace testified from the
objected-to documents that while in Louisiana, Appellant had tested positive
for cocaine in violation of the conditions of his community supervision and had
failed to report for two months in 2008, for all of 2009 except June (when he
tested positive for cocaine), and for the two months in 2010 prior to the
State’s filing the motion to proceed to adjudication.  Wallace also testified
that Appellant had failed to complete his drug and alcohol evaluation and his
theft diversion class while in Louisiana.  Again, his testimony was based on
the objected-to documents and not on his personal knowledge or records that he
or anyone else present could vouch for.
When
evidence is improperly admitted, a defendant does not waive his objection to
that testimony, curing its improper admission, by seeking to meet, destroy, or
explain the improperly admitted evidence by introducing rebutting evidence.[17]  Appellant
testified in an attempt to explain what had happened in Louisiana.  Appellant
testified that when he tested positive for cocaine, he immediately requested
and received another test, which came back negative.
Appellant
was also required to maintain employment and to report to his community
supervision officer as other conditions of community supervision.  Reporting, given
his work schedule, would have caused him to lose his job in violation of the
conditions of community supervision.  Maintaining his employment caused him to fail
to report.  Specifically, for the period he failed to report, Appellant
testified that he worked on an offshore drilling rig for long stretches at a
time, and when not working offshore, he worked twelve-hour shifts from 6 a.m.
to 6 p.m.  He testified that the Louisiana officials scheduled his reporting
time for noon but that his community supervision officer knew that he would not
be reporting during that time.  Appellant stated that on other occasions when
he did not report but was not at work, his community supervision officer
completed home visits instead.  Appellant also testified that his community
supervision officer was later fired for improprieties.
Other
than Appellant’s attempt to meet, destroy, or explain the evidence from
Louisiana by introducing rebutting evidence, no admissible evidence supported
the trial court’s ruling on the State’s motion to proceed to adjudication.
The
State argues that the evidence was sufficient to prove the allegation that
Appellant failed to make restitution because those records were within the
knowledge of Wallace.  The State alleged that Appellant violated the term of
community supervision that ordered him to
[p]ay restitution in
the amount of $32,000.00 as determined by the [DCCSCD]; said amount of
restitution or property due (to be delivered to the [DCCSCD] for transfer to
the victim or other person OR to be made directly to the victim or other
person) in installments of $275.00 per month, beginning on or before the 20th
day of March, 2008, and a like payment on the same day of each month thereafter
until fully paid.
The State alleged in its motion to adjudicate
Appellant’s guilt that Appellant
 
[v]iolated said term
and condition in that he failed to pay $275.00 toward payment of his
restitution on or before the 20th day of June 2008, October 2008;
March 2009, June 2009, September 2009, October 2009, November 2009, December
2009; January 2010, and February 2010.
The
record reflects that although Appellant made no payment in June 2008, he paid
$225 in July 2008 and made two payments in August 2008.  He paid $325 in
September 2008.  The record is silent as to October 2008 and shows a $200
payment in November 2008.  The record shows that Appellant paid $275 in January
2009 and $470 in February 2009 but made no payment in March.  He paid $275 in
April 2009, $175 in May 2009, nothing in June 2009, $250 in July 2009, $275 in
August 2009, nothing in September 2009, and $100 in October 2009.  He made no
further payment until April 2010 when he paid $650.
Appellant
testified that he had been unable to make some of his payments because he had
been out of work and because he was making low wages and supporting his
dependents.  The testimony regarding inability was uncontroverted.
The
State argues that an inability to pay, while still relevant to the State’s
allegations of nonpayment of supervision fees and court costs, is immaterial to
the State’s allegation regarding restitution, citing an unpublished Austin
Court of Appeals case.[18]  The State bases its
argument on the fact that the Texas Legislature omitted restitution and fines
from article 42.12, section 21(c) of the Texas Code of Criminal Procedure.[19] 
Revoking the community supervision of any defendant for failure to comply with
an impossible condition of community supervision cannot withstand scrutiny
through the lens of due process and equal protection.[20] 
Although the legislature has not enumerated impossibility of compliance as a
defense to revocation, due process and equal protection demand it.  Failure to
comply with a requirement that a defendant on community supervision report to a
nonexistent place or do an act on a nonexistent date cannot, alone, justify
revocation.  A better reasoned approach is that voiced by the Texas Court of
Criminal Appeals in Ex parte Gonzales:
[A]t a minimum, a trial court may not order a defendant
confined for failure to repay the costs of his legal defense pursuant to art.
26.05(e) unless the court considers the defendant’s ability to make the
payment.  The trial court’s power to order reimbursement should be limited to
the extent a defendant is reasonably able to do so.  See art. 26.05(e)
(stating “the court shall order the defendant to pay the amount that it finds
the defendant is able to pay”).[21]
Although
ability to comply is not explicitly to be considered pursuant to article 42.12,
the underlying constitutional principles discussed by the Gonzales court
still apply.
Here,
Appellant testified without contradiction that he had been without work and
that when he did work, he earned about $800 per month.  He testified that he
was supporting his dependents, as required by the conditions of his community
supervision.
I
agree with the State that when failure to pay is not the only ground alleged
for revocation, the State does not bear the burden of proving ability to pay
absent a claim of inability to pay.  But when, as here, the defendant on
community supervision raises inability to pay as his defense to failure to pay
and offers some proof, the State must prove ability to pay.  The State did not
sustain this burden, especially in light of the State’s willingness to accept
late payments and Appellant’s testimony that his Louisiana community
supervision officer told him to pay what he could.
Because admissible evidence did not otherwise
satisfy the State’s burden of proof, I would hold harmful the trial court’s
error in admitting the documents purporting to come from the Louisiana
community supervision department and the testimony about them and further hold
that the trial court abused its discretion by adjudicating Appellant’s guilt. 
I would therefore reverse the trial court’s judgment and remand this case to
the trial court.  Because the majority does not, I respectfully dissent.
 
 
 
LEE ANN DAUPHINOT
JUSTICE
 
PUBLISH
 
DELIVERED:  February 16,
2012
 




[1]See Tex. Penal Code
Ann. § 30.02(a)(1) (West 2011).


[2]See Tex. R. Evid.
803(6). 


[3]The first issue of
appellant’s brief focuses on rule of evidence 803(6); the brief does not
directly discuss whether the Louisiana records were admissible as public
records and reports under rule 803(8).  See Tex. R. Evid. 803(8).


[4]Appellant testified later
in the hearing in an attempt to explain or excuse these facts.  For example, he
stated that when he took two drug tests on the same day in June 2009, one was
positive and the other was negative.  He also testified that he asked his
Louisiana probation officer about the drug and alcohol evaluation and that the
officer set the class for a time that appellant was working.  Appellant does
not contest, however, that the facts revealed through Wallace’s testimony are
sufficient to support the trial court’s revocation decision under the
preponderance of the evidence standard; he contends only that evidence of the
facts should not have been admitted.


[5]For example, “it is
settled that when a pre-trial motion to suppress evidence is overruled,
the accused need not subsequently object to the admission of the same evidence
at trial in order to preserve error.”  Fuller v. State, 827 S.W.2d 919,
930 (Tex. Crim. App. 1992) (emphasis added), cert. denied, 509 U.S. 922
(1993); see Williams v. State, 834 S.W.2d 502, 507 (Tex. App.—Fort
Worth 1992, pet. ref’d).  Appellant did not seek to suppress evidence
associated with the Louisiana records prior to the trial court’s revocation
hearing.


[6]A running objection would
have, of course, relieved the trial court of the burden of “defense counsel jumping
up and down like a Jack-in-the-Box at each mention of the documents complained
of.”  See Dissenting Op. at 8.


[7]We note that appellant did
not argue in the trial court that his Sixth Amendment right to be confronted
with the witnesses against him had been violated by admission of the Louisiana
records.  For this reason as well, he forfeited that complaint.  See Reyna
v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (“An objection on
hearsay does not preserve error on Confrontation Clause grounds.”); Robinson
v. State, 310 S.W.3d 574, 577–78 (Tex. App.—Fort Worth 2010, no pet.).


[8]Tex. R. Evid. 803(6).


[9]Tex. R. Evid. 803(8).


[10]Tex. R. Evid. 901(a); Porter
v. Tex. Dep’t of Pub. Safety, 712 S.W.2d 263, 265 (Tex. App.—San Antonio
1986, no writ); see also Henderson v. Heyer–Schulte Corp., 600 S.W.2d
844, 850 (Tex. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.) (holding trial
court properly excluded document that witness could not identify or
authenticate).


[11]Tex. R. Evid. 902; Castro v. Sebesta, 808 S.W.2d 189, 195 (Tex. App.—Houston [1st Dist.] 1991, no
writ) (op. on reh’g).


[12]Estrada
v. State, Nos. 05-96-00752-CR, 05-96-00753-CR, 1999 WL 521683, at *7 (Tex. App.—Dallas July 23, 1999,
pet ref’d as untimely filed) (op. on reh’g) (not designated for publication)
(citations omitted from excerpt, but relying on former rule of criminal
evidence 803(6); Porter v. State, 578 S.W.2d 742, 746 (Tex. Crim. App. 1979);
and Philpot v. State, 897 S.W.2d 848, 852 (Tex. App.—Dallas 1995,
pet. ref’d)).


[13]Fuller v. State, 827
S.W.2d 919, 930 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 922
(1993).


[14]Ford v. State, 305
S.W.3d 530, 533 (Tex. Crim. App. 2009) (citations omitted).


[15]Galitz v. State, 617 S.W.2d 949, 952
n.10 (Tex. Crim. App. 1981) (op. on reh’g) (citing Zillender v. State,
557 S.W.2d 515, 517 (Tex. Crim. App. 1977) (op. on reh’g)); Roberts v. State,
545 S.W.2d 157, 158 (Tex. Crim. App. 1977).
 


[16]Zillender,
557 S.W.2d at 517.


[17]Leday v. State,
983 S.W.2d 713, 719 (Tex. Crim. App. 1998) (citing Thomas v. State, 572
S.W.2d 507, 512 (Tex. Crim. App. 1978)).


[18]See Sierra v. State,
No. 03-09-00664-CR, 2009 WL 2902706, at *3 (Tex. App.—Austin Aug. 26, 2009, no
pet.) (mem. op., not designated for publication).


[19]Tex. Code Crim. Proc.
Ann. art. 42.12, § 21(c) (West Supp. 2011).


[20]See U.S. Const.
amends. V, XIV; Tex. Const. art. I, § 19; Tex. Code Crim. Proc. Ann. art. 1.04
(West 2005).


[21]Ex parte Gonzales,
945 S.W.2d 830, 834 (Tex. Crim. App. 1997).


