                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                          No. 07-14-00020-CR


                             PATRICIA ANN ADAMS, APPELLANT

                                                    V.

                               THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 46th District Court
                                      Foard County, Texas
                    Trial Court No. 1296, Honorable Dan Mike Bird, Presiding

                                          September 18, 2014

                                 MEMORANDUM OPINION
                    Before QUINN, C.J., and HANCOCK, J., and BOYD, S.J.1

      Appellant, Patricia Ann Adams, appeals her conviction for possessing a

controlled substance.         Through a single issue, she contends that the trial court’s

decision to overrule her objections to hearsay statements uttered by her daughter

violated the Confrontation Clause encompassed within the Sixth Amendment to the

United States Constitution. The decision on whether the statements at issue were

rendered inadmissible due to the Confrontation Clause was addressed via a pretrial


      1
          Senior Justice John T. Boyd, sitting by assignment.
hearing.      Therein, the trial court heard evidence from several witnesses and

subsequently concluded that the statements would be admissible at trial. It so ruled

after finding that appellant had forfeited the constitutional right due to her preventing the

girl from testifying.      Assuming arguendo the trial court erred in denying appellant’s

pretrial attack upon the admissibility of the hearsay testimony, the error was harmless.

We affirm the judgment.

        A criminal defendant has a Sixth Amendment right to be confronted with the

witnesses against him; that is, to physically confront his accusers face-to-face.

Crawford v. Washington, 541 U.S. 36, 57, 124 S.Ct. 1354, 1370, 158 L.Ed.2d 177

(2004); Johnson v. State, 433 S.W.3d 546, 551 (Tex. Crim. App 2014); Gonzalez v.

State, 195 S.W.3d 114, 116 (Tex. Crim. App. 2006). When applicable, the Amendment

bars the admission of out-of-court statements by a declarant whom the criminal

defendant has been unable to confront. Gonzalez v. State, 195 S.W.3d at 116; accord,

Langham v. State, 305 S.W.3d 568, 575-76 (Tex. Crim. App. 2010) (stating that out-of-

court statements offered against the accused that are testimonial in nature are

objectionable under the Constitution unless the prosecution can show that the declarant

is presently unavailable to testify in court and the accused had a prior opportunity to

cross-examine him).

        Here, after the trial court ruled as it did at the pretrial hearing, appellant accepted

a plea bargain with the State. As a result of that bargain, she entered an open plea to a

lesser included offense.2 The record does not reflect that anything said by appellant’s

daughter was admitted at the proceeding wherein appellant uttered her guilty plea or

        2
           And, though appellant represents in her brief that the trial court’s pretrial ruling influenced her
decision to enter an open plea to a lesser offense, she cited us to nothing of record supporting that
assertion.

                                                      2
was considered by the trial court in accepting that plea. More importantly, the plea did

not end the proceeding.

      The trial court subsequently convened a trial on the issue of punishment. During

that proceeding, allusion was made to the girl’s statements. However, the girl (that is,

the declarant of the statements in question) was not only present at the punishment

hearing but also testified. So too did appellant’s legal counsel examine her. Given

those circumstances, it cannot be said that reference to the girl’s out-of-court

statements denied appellant her right to confront her daughter.      The daughter was

available for and subjected to cross-examination.

      Furthermore, the State presented testimony of another witness who described

how he personally secured the drugs at issue from appellant’s dresser drawer and

delivered them to law enforcement personnel. It also presented testimony from law

enforcement personnel disclosing that when the drugs were presented to appellant she

replied “what are you doing in my house.” The admissibility of that evidence is not

attacked on appeal. More importantly, it rather conclusively illustrates both appellant’s

awareness of the drugs and her exercise of custody, care and control over them.

      Simply put, appellant had the opportunity to examine the declarant when her

purportedly hearsay statements were admitted at the trial. So, there was no denial of

any right to confront at that time. The State also had overwhelming evidence of

appellant’s guilt aside from the hearsay statements. This is of import because the

suggestion that the hearsay would have been tendered as evidence at the

guilt/innocence phase of the trial had appellant not entered an open plea of guilty is

mere speculation.   Just because a prosecutor may indicate before trial that certain



                                           3
evidence would be used does not obligate the prosecutor to actually use that evidence.

Nor does it require us to infer that the evidence would have been used to establish guilt.

Indeed, the State is free to unilaterally develop and change its trial strategy. If an

aspect of that strategy leads the defendant to plead guilty, that is the defendant’s option.

The plea only binds the State to abide by the plea, nothing else. So, given the record

before us, we can say, beyond reasonable doubt, that the trial court’s pretrial ruling did

not contribute to appellant’s conviction or punishment.

       Accordingly, the judgment is affirmed.



                                                          Per Curiam




Do not publish.




                                             4
