                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                              NO. 2-09-358-CR
                              NO. 2-09-359-CR


BECKY PLOWMAN                                                      APPELLANT
FORSYTH A/K/A BECKY
JO FORSYTH

                                       V.

THE STATE OF TEXAS                                                       STATE


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         FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                       MEMORANDUM OPINION1
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                                  I. INTRODUCTION

     Following a jury verdict in the trial court, Appellant Becky Plowman Forsyth

a/k/a Becky Jo Forsyth (Forsyth), appeals her convictions for possession of




     1
      See Tex. R. App. P. 47.4.
methamphetamine less than one gram2 and for fraudulent use or possession of

identifying information.3 The trial court sentenced Forsyth to two years’ state jail

confinement and assessed a fine of $10,000 for each offense. In one issue,

Forsyth argues that her Sixth Amendment right to confrontation was violated

when the trial court admitted certain portions of out-of-court video testimony of

her co-defendant husband. We will affirm.

                                 II. BACKGROUND

      On the evening of October 15, 2008, Granbury Police Officer Richard

Branum responded to a dispatch regarding a forged prescription at the CVS drug

store in Granbury, Texas. Branum stopped the truck described by the dispatcher

as it left the pharmacy window. Forsyth and her husband, Johnny Leroy Forsyth

(Johnny), both exited the vehicle upon being stopped. According to Branum, it

was unusual for occupants to immediately exit a vehicle in this manner, and

Branum believed they were attempting to distance themselves from the truck and

its contents. Branum stated that Forsyth appeared nervous and ―was visibly

shaken.‖ Both individuals provided Branum with their Texas Offender Cards as

identification. Johnny gave Branum permission to search the vehicle and Forsyth

gave him permission to search her purse.




      2
          Tex. Health & Safety Code Ann. § 481.115 (Vernon 2010).
      3
          Tex. Penal Code Ann. § 32.51 (Vernon Supp. 2009).

                                         2
      Canine officer Jeremy Ballew and officer Patrick Wiginton also arrived on

the scene to assist Branum. In the course of their investigation, the officers

located a small, clear bag containing what was later determined to be

methamphetamine in the front passenger-side floorboard.            The officers also

found a container holding a glass pipe and additional baggies, all of which

contained methamphetamine residue. A $600 check from Tena Hatfield made

out to Johnny was wrapped around the contents of the container.                    Inside

Forsyth’s purse, officers found a patient health care card in Hatfield’s name and a

piece of paper with Hatfield’s name and address, along with four other

individuals’ names and birth dates.      Also in Forsyth’s purse, officers found a

Social Security card, a Six Flags season pass, and a restaurant club card all in

the name of April Renee Ramsey. Forsyth stated that she did not know any of

the individuals whose identification information and personal items were in her

possession.

      The State played the on-scene videotape from the stop and subsequent

investigation, to which Branum offered commentary in response to the State’s

questions. Forsyth first objected to admission of the videotape during a bench

conference outside of the presence of the jury. Before any witnesses were called

to the stand, the following colloquy took place:

              [Defense counsel]: And -- and, Your Honor, furthermore,
              there’s -- there are also some things on the tape that is simply
              Johnny and the police talking, and, you know, I -- I -- I don’t
              even know if that would fit under a hearsay exception if it’s just
              the police either talking to each other or talking to Johnny, I

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don’t think that that’s relevant or would fit under exception to
be admitted. There’s -- there’s several incidents of that.

       For instance, at that time 21:07 --

[Trial Judge]: You[] excise[d] that out of there?

[Prosecutor]: Your Honor, I have not excised -- there -- there
-- there is an investigation going on, the defendant is right
there as the investigation is going on, they’re talking to both
subjects throughout the tape, and -- and, no, I didn’t excise
anything of the audio of the investigation surrounding this
particular offense, I have not excised any of that.

[Defense counsel]: And -- and we’ll admit it’s a very difficult
thing, because there is a bunch of different things going
together, and it’s -- it’s hard to get a perfect video, but there’s
just a lot of things having to do with Johnny and the
investigation of Johnny and things that Johnny says. Johnny
says, for instance, and I hate to use the language here, but he
quotes ―Becky should take that shit.‖ Well, you know, those
are comments that don’t need to be in the video, in my
opinion. These -- these are hearsay and not under a -- an
exception, and would just be extraneous from -- from Johnny.

[Prosecutor]: Your Honor, with regard to the -- the contact that
he -- con- -- the statement that he’s talking about was a
statement that was heard by the defendant, and that when she
later on in the video then responds to and -- and makes
statements herself, it -- it’s not hearsay, it’s purely contextual
with regard to how it all happened, the investigation and all
the, you know, throughout the tape. We have -- we have gone
through meticulously to -- to take out anything that would refer
to any type of extraneous conduct, and I believe that -- that
the tape itself is purely contextual at this point, what has been
submitted to the defense and what we intend to introduce.

....

[Trial Judge]: All right. I’ll overrule that objection, find those,
the statements to be contextual to the -- the events
surrounding the charge and the arrest here, and I will allow
that. All right.

                             4
      Later, during Branum’s testimony, the following exchange occurred:

            [Prosecutor]: Your Honor, I move to admit State’s Exhibit
            Number 1 into evidence.

            [Defense counsel]: Your Honor, we’re going to renew our
            prior objections based on Rules 403, 404, and hearsay.

            [Trial Judge]: All right. Those objections were previously
            overruled, and that, again, overruled, and State’s 1 is
            admitted.

      Criminal investigator Richard Haught testified that the $600 check written

out to Johnny on Hatfield’s account was in fact stolen. Ramsey testified that she

and Forsyth were friends but that she did not give Forsyth permission to possess

any of her identifying information. Texas Department of Public Safety forensic

scientist Herman Carrel testified that the residue in the baggies found in

Forsyth’s possession was methamphetamine and that each of the two samples

weighed 0.01 grams. Ronda Russell, Johnny’s cousin, testified that she loaned

Johnny and Forsyth her truck approximately three to four days before they were

stopped in the vehicle. Russell stated that she had previously seen Forsyth in

possession of the blue-and-white container that held the stolen check, baggies of

methamphetamine, and paraphernalia. Russell further stated that it was possible

the baggies of methamphetamine were hers or someone else’s because she was

addicted to methamphetamine at that time and additionally loaned the truck out

to various other drug users. The jury returned a guilty verdict on both counts of

Forsyth’s indictment. This appeal followed.


                                       5
                                  III. DISCUSSION

      In a single issue, Forsyth complains that the admission of a non-testifying

co-defendant’s statement violated her confrontation rights under the Sixth

Amendment of the United States Constitution. Specifically, Forsyth argues that

the trial court’s admission of the police videotape, which contained certain

statements by her husband, was a violation of her Sixth Amendment right to

confrontation and was harmful, reversible error. The State contends that Forsyth

failed to preserve error, if any, due to failure to object with specificity and

because Forsyth’s complaint on appeal does not comport with her objections at

trial. We agree with the State.

      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. Lugo v. State, 299 S.W.3d 445, 449–50 (Tex. App.—Fort

Worth 2009, pet. ref’d) (citing Tex. R. App. P. 33.1(a)(1)); Mosley v. State, 983

S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh'g), cert. denied, 526 U.S.

1070, 119 S. Ct. 1466, (1999)). The objection must be specific so that the trial

court is aware of the complaint and has the opportunity to correct the error, or the

opposing party has an opportunity to remove the basis for objection. Martinez v.

State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000). 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. Lugo,

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299 S.W.3d at 449–50 (citing Tex. R. App. P. 33.1(a)(2)); Mendez v. State, 138

S.W.3d 334, 341 (Tex. Crim. App. 2004)). Generally, if an appellant fails to

object at trial, if her objection is general and not specific, or if she objects on

different grounds, she forfeits her right to appeal. Tex. R. App. P. 33.1; Lugo,

299 S.W.3d at 450. Even constitutional errors may be forfeited by failure to

object at trial. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).

Without more, an objection based on the rules of evidence does not preserve

error on Confrontation Clause grounds. Reyna v. State, 168 S.W.3d 173, 179

(Tex. Crim. App. 2005) (reasoning that when a defendant’s objection

encompasses complaints under both the Texas Rules of Evidence and the

Confrontation Clause, the objection is not sufficiently specific to preserve error)

(citing Cantu v. State, 939 S.W.2d 627, 634 (Tex. Crim. App. 1997)).

      In this case, Forsyth never objected on the basis of the Confrontation

Clause at trial.   Although Forsyth objected to the admission of the taped

statements on the bases of relevance, extraneous conduct, and hearsay, none of

these objections preserved Forsyth’s Confrontation Clause complaint for

appellate review. Because these objections were based on the Texas Rules of

Evidence, Forsyth waived any alleged Sixth Amendment error. See Robinson v.

State, 310 S.W.3d 574, 577 (Tex. App.—Fort Worth 2010, no pet.) (citing Reyna,

168 S.W.3d at 179–80); Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App.

2004) (overruling the appellant's constitutional Confrontation Clause points

because he did not preserve error related to the Confrontation Clause at trial);

                                        7
Campos v. State, 186 S.W.3d 93, 98 (Tex. App.—Houston [1st Dist.] 2005, no

pet.) (explaining that the ―right of confrontation is vital to an ordered criminal

justice system, but it is nonetheless a trial right, and a defendant waives his right

to confront witnesses if he does not object at trial‖); Courson v. State, 160

S.W.3d 125, 129 (Tex. App.—Fort Worth 2005, no pet.)).

      Accordingly, we overrule Forsyth’s sole issue and affirm the trial court’s

judgments.




                                             BILL MEIER
                                             JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

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

DELIVERED: August 31, 2010




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