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### COURT OF APPEALS TWELFTH COURT OFAPPEALS 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 

### ofCherokee 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 orthis Court that there was no
error in the judgment. 

### It is therefore ORDERED, ADJUDGED and DECREED that the 

## judgmentofthe courtbelow be in all things affirmed and that this decision be certified to the court below for observance. Tom B. Ramey, Jr., ChiefJustice. 

### Holcomb, G, J., notparticipating.<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 STATEOF TEXAS, 

### APPELLEE § CHEROKEE COUNTY, TEXAS 

### Jeffery Lynn Ward ("Ward") appeals his conviction on two counts of aggravated 

### sexual assaultandonecountofpossessionofchildpornography. After apica of"notguilty," he was tried before ajury, which returned averdict 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 ofaggravated sexual assault against each oftwo 

## minorfemale children,J.S. andT.B., occurringon oraboutJuly 14, 1992. Ward's solepoint of error addresses aproblem that arose during trial when T.B., then seven years old, became, in the course ofher testimony, unwilling or unable to answer further questions 

## about the charged assault. She hadpreviously testified that she and J.S. had fallen asleep atWard's residence, and, to aquestion aboutwhat happened, responded "I don't remember 

## thatquestion." The Statethen requested, andwasgiven, permission ask leading questions, and T.B. testified that Ward did something-she didn't know what-to J.S. in the bathroom. 

## TotheState'squestions aboutwhatWarddidto her, T.B. repeatedlyrefusedto answer, and 

## she indicated to thejudge 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 thisyoung 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 ofT.B.'s testimony given in a prior bond revocation hearing. Ward's counsel objected on a number ofgrounds, and the trialjudge delayed his ruling till the next day. Thenext 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 ofthe 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, Ihave no objection to allowing this entire document to be introduced',] the excising of Mr. Ward's problem of the Sheriffbeing given apriorconviction that's now on appeal, and any reference in that, that Jeff Ward has had anypriorconviction. I welcome this to be Introduced if that is the situation. The judge then asked Ward's counsel whether, ifthereferences 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, tothe 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 ofevidence and the stateand federal constitutions.1 Wardfirst 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 ifthe declarant is unavailable as a witness: (1) Former Testimony. Testimony given as a witness at another hearing ofthe sameor a different proceeding, if the partyagainst whom thetestimony isnow 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 underRule 804(b)(1) is a question for the trial court to resolve, reviewable only under an abuse ofdiscretion 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 ofherformer testimony. Though troubling, such testimony has nobearing on the point oferror before us today, whetherthe trialjudge erred in admitting T.B.'s former testimonyfrom the bond hearing. Even ifthose 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 orderthe witness to answer, and thejudge here tried as besthe could togetT.B. to answer thequestions. Though, with an adult, onewould expect thejudge to threaten arecalcitrant witness with sanctions, we don't believe that the court Is required to threaten ayoung 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 thetestimony at the priorproceeding as he now hasat trial. It requires only that he have had a "similar" motive. "(Njeither the form of the proceeding, the theoryof the case, nor the nature of the relief sought need be the same." (citation omitted). "(Ojnly the particular issue as towhich the testimony was first offered must besubstantially similar todieissue 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 wouldcommit 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 rebutsuch allegations. Ourconclusion thatWard's counsel in the bondhearing did 

### in fact have an opportunity and similar motive to develop T.B.'s testimony is supported by the Coffin decision, which held thatthe defendant's counsel had, for Rule 804 purposes, a similar motive to examine a witness in a priorhearing to certify ajuvenile 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 testimonywas 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 ofcriminal appeals has observed that the literal language ofthe Texas Constitution Is "susceptible to a more affirmative and vigorous interpretation than the comparable confrontation clause ofthe Sixth Amendment," Long v. State, 742 S.WJd 302, 309 fn.9 (Tex. Cr. App. 1987), overruled on othergmundr,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), apreference that "must occasionally give way to considerations ofpublic policy and the necessities of the case." 

### Marylandv. 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 ofchild abuse victims'may be sufficiently important tooutweigh, at least in some cases, a defendant's right to face his orher
accusers in court. 

### Ibid, at853. We thus initially note that there is some flexibility injudging aState's attempts to accommodate the competing values ofpromoting confrontation and protecting child witnesses. 

### With respect tohearsay, 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 ahearsay declarant isnotpresent forcross-examination at trial, theConfrontation Clause normallyrequires ashowing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia ofreliability." Reliability can be inferred without more in a case where theevidence falls within a firmly rooted hearsay exception: '"" > ^ 

### Ohio v. Roberts, 448 U.S. 56, 66 (1980). There is no question thatT.B. was "unavailable" at 

### thetime oftrial, asthatterm is properly understood. As we discussed above, theuse ofher 

### prior testimony was proper under the exception to the rule against hearsay codified in the Texas Rules ofCriminal 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 declaredbytheVS. SupremeCourt in decidingconstitutional issues on diis subject. Gon&ksvState, 

### 818 S.W2d 756,764 (Tex. Cr. App. 1991). Wattsy. State, 856S.W2d 246 (Tex. App. -Beaumont 1993, no pet.). 

### We will therefore analyze Ward's claim ofconstitutional infirmity under the single standard utilized by both jurisdictions.+0. <Q'ZAi - 

### prior testimony is afirmly established exception to the rule against hearsay. See Potts v.

• State, 26 Tex. App. 664, 14 S.W. 456 (1883), amJOther English andAmerican ras^ ritPH in 

### Annotation: "Use in acriminal case oftestimony given on former trial, or preliminary examination, by witnesses not available atpresent trial," 15 A.L.R. 495 (1921). The use ofthis 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 ifthis 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 offeredbythe State, 

### was admitted without objection. Failure to object to inadmissible hearsay waives the right to complain ofits 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 ifahearsay objection is lodged. Cofieldv. State, 857 S.W.2d 798, 804 (Tex. App.

- Corpus Christi 1993), off' d,

_ S.W.2d _. Ward's sole pointoferror is overruled. Thejudgment ofthe court below is affirmed.

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

PUBLISHED

6 TOM B. RAMEY. JR. Chief Justice