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COURT OF APPEALS

TWELFTH COURT OF APPEALS 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 or this Court that there was no

error in the judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the

judgment of the court below 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., not participating.
<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 assault and one count of possession of child pornography. After apica of "not guilty,"

he was tried before a jury, which returned a verdict 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 of aggravated sexual assault against each of two

minor female children, J.S. and T.B., occurring on or about July 14, 1992. Ward's sole point

of error addresses a problem that arose during trial when T.B., then seven years old,

became, in the course of her testimony, unwilling or unable to answer further questions

about the charged assault. She had previously testified that she and J.S. had fallen asleep

atWard's residence, and, to aquestion about what happened, responded "I don't remember

that question." The State then requested, and was given, permission ask leading questions,

and T.B. testified that Ward did something-she didn't know what-to J.S. in the bathroom.

To the State's questions about what Ward did to her, T.B. repeatedly refused to answer, and

she indicated to the judge 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 this young 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 of T.B.'s testimony given in a prior bond revocation

hearing. Ward's counsel objected on a number ofgrounds, and the trial judge delayed his

ruling till the next day. The next 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 of the 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, I have no objection to allowing this entire document to be introduced',] the excising of

Mr. Ward's problem ofthe Sheriff being given aprior conviction that's now on appeal, and any

reference in that, that Jeff Ward has had anyprior conviction. I welcome this to be Introduced

if that is the situation.

Thejudge then asked Ward's counsel whether, ifthe references 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, to the 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 of evidence and the state
and federal constitutions.1

Ward first 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 if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony given as a witness at another hearing of the

sameor a different proceeding, if the partyagainst whom the testimony 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 under Rule 804(b)(1) is a question

for the trial court to resolve, reviewable only under an abuse of discretion 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, whether the trialjudge erred in admitting T.B.'s former testimony from the bond hearing. Even

if those 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 order the witness to answer, and the judge here tried as best he could

togetT.B. to answer thequestions. Though, with an adult, onewould expect the judge to threaten a recalcitrant

witness with sanctions, we don't believe that the court Is required to threaten a young 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 the testimony 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 be substantially similar to die issue 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, 885S.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. Our conclusion that Ward's counsel in the bond hearing did

in fact have an opportunity and similar motive to develop T.B.'s testimony is supported by

the Coffin decision, which held that the defendant's counsel had, for Rule 804 purposes, a

similar motive to examine a witness in a prior hearing to certify a juvenile 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 of criminal appeals has observed that the literal language of the 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 other gmundr,
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), a preference that "must occasionally give way to considerations of public policy and

the necessities of the case."

Maryland v. 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 of child abuse victims'may be

sufficiently important tooutweigh, at least in some cases, a defendant's right to face his or her accusers in court.

Ibid, at 853. We thus initially note that there is some flexibility in judging aState's attempts

to accommodate the competing values of promoting confrontation and protecting child

witnesses.

With respect to hearsay, 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 a hearsay declarant isnotpresent forcross-examination at trial, theConfrontation Clause

normally requires a showing that he is unavailable. Even then, his statement is admissible only

if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case

where the evidence 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

the time oftrial, asthatterm is properly understood. As we discussed above, the use 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 declared by the VS. Supreme Court in deciding constitutional issues on diis subject. Gon&ks v State, 818 S.W2d 756,764 (Tex. Cr. App. 1991). Wattsy. State, 856 S.W2d 246 (Tex. App. -Beaumont 1993, no pet.). We will therefore analyze Ward's claim of constitutional infirmity under the single standard utilized by both

jurisdictions.
+0. <Q'ZAi -

prior testimony is a firmly established exception to the rule against hearsay. See Potts v.

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

Annotation: "Use in a criminal case of testimony given on former trial, or preliminary

examination, by witnesses not available at present 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 if this 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 offered by the State,

was admitted without objection. Failure to object to inadmissible hearsay waives the right

to complain of its 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 if a hearsay objection is lodged. Cofieldv. State, 857 S.W.2d

798, 804 (Tex. App. - Corpus Christi 1993), off' d, _ S.W.2d _.

Ward's sole point oferror is overruled. The judgment ofthe court below is affirmed.

Opinion delivered March 31, 1995.

Holcomb, C, J., not participating.

PUBLISHED

6

TOM B. RAMEY. JR.

Chief Justice