                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-17-00323-CR


SCOTT PAUL WAYNE                                                 APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE

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         FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
                     TRIAL COURT NO. 58,479-B

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                       MEMORANDUM OPINION1

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                               I. INTRODUCTION

     Appellant Scott Paul Wayne appeals his conviction for aggravated assault

with a deadly weapon for which he was sentenced to ten years’ imprisonment. In

a single point, Wayne argues that the trial court abused its discretion by




     1
      See Tex. R. App. P. 47.4.
overruling his hearsay objection to a child’s statement that “Daddy is trying to kill

Mommy.” We will affirm.

                                 II. BACKGROUND2

      While on patrol in August 2015, Amber Bernal, an animal control officer

with the City of Wichita Falls, saw two toddlers who were wandering around

outside a home without adult supervision and radioed dispatch to notify the police

department about the situation. An officer arrived on the scene in less than ten

minutes.

      Bernal stayed on the scene while the officer knocked on the door. Shortly

thereafter, a thirteen-year-old girl and a ten-year-old boy came running out of the

house. Bernal testified without objection that the girl screamed, “He’s going to kill

her. He’s going to kill her.”

      Officer Donald Cole with the Wichita Falls Police Department testified that

he responded to the dispatch for a welfare check on the two toddlers who were

reported as “either in the street or getting into the street.” When Officer Cole

arrived, he found the two toddlers playing inside a playhouse on a porch. Officer

Cole knocked on the door to inform the parents that their children had been near

the street. As soon as Officer Cole knocked, the door opened, and two children,

who were older than the toddlers and who appeared scared, ran out of the


      2
        Because Wayne does not challenge the sufficiency of the evidence to
support his conviction, we omit a detailed factual background and instead set
forth only the facts that are pertinent to the issue he raises on appeal.


                                         2
house. Over Wayne’s objection, Officer Cole testified that the boy said, “Daddy

is trying to kill Mommy.” The older children then left, and Officer Cole did not see

where they went.

      Cara,3 who was fourteen years old at the time of the trial, testified that

Wayne used to be her step-father. Cara testified that on the date in question, her

younger brother Jerry came into her room and said, “Mom and Dad are fighting.”

Cara then heard a loud bang and ran downstairs. She saw her mother lying on

the floor, and Wayne was lying on top of her mother, pointing a knife at her and

calling her names. Cara’s mother told her to call 911. Wayne said, “Don’t call

911 or I’ll kill your mom and you’re next,” and told Cara to go sit on the couch.

Shortly after Cara sat down on the couch, she saw a police officer approaching

the door. Cara ran and unlocked the door and let the police officer in. Cara

testified without objection that she told the police officer that her dad4 was trying

to kill her mom, and then she and Jerry ran down the street to a friend’s house.

      Jerry, who was eleven years old at the time of the trial, testified that Wayne

was his former step-father. On the date in question, Jerry was helping his mom

clean the kitchen when Wayne came in the kitchen and slammed his mom to the

floor. Jerry ran upstairs to his sister’s room and told her that “Mom and Dad were

fighting.” After hearing a loud bang, Cara went downstairs, and Jerry eventually

      3
      We use aliases throughout the opinion to refer to the children, who are
minors. See Tex. R. App. P. 9.8 cmt., 9.10(a)(3).
      4
       Cara testified that she used to refer to Wayne as her dad.


                                         3
joined her when he saw her sitting on the couch. When the police officer arrived,

Jerry heard Cara tell the police officer, “Our dad’s trying to kill our mom.”5

       Tracy Moffett, the mother of Cara and Jerry and the ex-wife of Wayne, also

testified at trial.   She provided details about what led up to the assault and

explained that she struggled to take the knife from Wayne until the police officer

came to the door. Moffett testified without objection that she heard one or both of

her children say, “Daddy’s trying to kill Mommy.”

                  III. ANY ERROR WAS NOT PRESERVED FOR REVIEW

       In his sole point, Wayne argues that the trial court abused its discretion by

overruling his hearsay objection to Officer Cole’s testimony that Jerry said,

“Daddy is trying to kill Mommy.”

       To preserve a complaint for our review, 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); Douds v. State, 472 S.W.3d

670, 674 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016). A party

must continue to object each time the objectionable evidence is offered.

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)); Clay v. State, 361 S.W.3d

762, 766 (Tex. App.—Fort Worth 2012, no pet.). A reviewing court should not


       5
        This statement was admitted over Wayne’s hearsay objection.


                                          4
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).

      Wayne argues that the trial court erred by admitting Officer Cole’s

testimony relating the child’s statement—“Daddy is trying to kill Mommy”—over

Wayne’s hearsay objection. After the trial court overruled Wayne’s objection

during Officer Cole’s testimony, Wayne did not seek a running objection. The

State points out that the challenged statement was subsequently admitted

without objection during Cara’s testimony and that Moffett’s testimony was

referenced in Bernal’s testimony, which preceded Officer Cole’s testimony.

Because an objection was not lodged each time the challenged statement was

made, the alleged error in admitting the statement during Officer Cole’s testimony

is not preserved for our review.      See Clay, 361 S.W.3d at 767 (“[B]ecause

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, we conclude that he forfeited his

objection to the records’ admission.”).

      Within his sole point, Wayne also contends that “[t]he hearsay exception

for the introduction of an excited utterance must yield to the right of confrontation

granted to all those accused” and that “[t]he record of this case is void as regards

an analysis by the court as to the issues of unavailability and prior opportunity to

cross-examine the declarant of the alleged utterance.” However, Wayne raised




                                          5
no Confrontation Clause objection in the trial court.6 Because the Confrontation

Clause argument asserted on appeal was not raised at trial, it also is not

preserved for our review. See Leza v. State, 351 S.W.3d 344, 360–61 (Tex.

Crim. App. 2011) (holding that appellant failed to preserve constitutional

argument raised on appeal because “he never alerted the trial court in any way

that exclusion of the statement would violate any federal constitutional right”);

Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (“Because

[appellant] ‘did not clearly articulate’ that the Confrontation Clause demanded

admission of the evidence, the trial judge ‘never had the opportunity to rule upon’

this rationale.”).

       Having determined that the arguments raised here have not been

preserved for our review, we overrule Wayne’s sole point.

                                 IV. CONCLUSION

       Having overruled Wayne’s sole point, we affirm the trial court’s judgment.

                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: WALKER, MEIER, and BIRDWELL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 9, 2018


       6
      In the trial court, Wayne had the opportunity to cross-examine both Cara
and Jerry.


                                         6
