COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

DAVID LEE KELLEY , Appellant ,

v.
THE STATE OF TEXAS , Appellee. § § § § § § No. 08

- 13

- 00 3 37

- C R

Appeal from the
3 55 th Judicial District Court
of Hood County , Texas (TC# CR12456 )

O P I N I O N David Lee Kelley appeals his two drug

- related convictions

. In one issue, he claims the
trial court reversibly erred in repeatedly admitting an informant’s out

- of

- court statements over his hearsay objections

. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND Kelley was charged in a two

- count indictment with the following offenses: (1) possession of more than four grams of Methamphetamine with intent to deliver; and (2) possession of more than four grams of Oxycodone with intent to deliver. At trial, the State elicited testimony on three separate inst ances from t wo of its witnesses, narcotics investigators with the Hood County Sheriff’s Office, that they received information Kelley was selling drugs. In each instance,2

defense counsel raised , and the trial court overruled, a hearsay objection to the admissibility of the
testimon y
. The firs t instance occurred soon after Ray Miller, one of the narcotics investigators , had
taken the stand. He was asked to explain what led him to investigate Kelley : [PROSECUTOR]: On that day, d id you receive some information about illegal activities occurring in Hood County? [WITNESS]: Yes, ma’ am, I did. [PROSECUTOR]: And what time did you receive that information? [WITNESS]: Shortly aft er lunch, I had received a call from the Hood County Sheriff’s Department dispatch advising they had just received a call for service pertaining to narcotics being distributed from a residence in Montego Bay. [DEFENSE COUNSEL] : Judge, let me object to hearsay. [TRIAL COURT ] : Overruled.
The second instance arose in a similar vein when William Watt, the other narcotics investigator
and Miller’s partner on the day in question , was asked the same question : [PROSECUTOR]: On that date, did you receive some information about illeg al activities occurring in Hood County? [WITNESS]: I did. [ PROSECUTOR]: And about what time on March 5th did you receive that information? [WITNESS]: It was a lit tle after lunch, roughly around 12:30. [PROSECUTOR]: And what was the nature of that information? [WITNESS]: I h ad received a phone call from a st reet

- level informant, advising that ther e was a place in Montego Bay

– [DEFENSE COUNSEL] : Judge, let me object to hearsay.3

[TRIAL COURT]: Overruled. [WITNESS]: Fellow by the name of Cowboy was dealing narcotics out of his vehicle. [PROSECUTOR]: And did you know who Cowboy was? [WITNESS: I did. [PROSECUTOR]: And who did you know cowboy to be? [WITNESS]: David Lee Kelley. And the third instance transpired whe n Watt was asked to explain why he believed Kelley was selling narcotics: [PROSECU TOR]: And t hat money that was found in the defendant’s pocket, did that indicate anything to you? [WITNESS]: Yes, ma’ am. [PROSECUTOR]: And what did that indicate to you? [WITNESS]: Between the baggies, the empty baggies, all t he scales and everything is kept in one area location, and the fact that we got word that he was selling out of the vehicle, and the cash that he had in his pocket, indicated t hat he was selling. [DEFENSE COUNSEL] : Judge, let me object to the portion of that respo nse where he says he heard from some other person as hearsay. [TRIAL COURT ] : Overruled. [PROSECUTOR]: Okay. Go ahead, Investigator Watt. What did it indicate to you? [WITNESS]: I t indicated that he was selling methamphetamine and other narcotics.
Neither the street

- level informant nor the individual who telephoned dispatch were called by the
State as witnesses.4

The jury found Kelley guilty of both counts and assessed punishment at 99 years’ imprisonment on each count.
PRESERVATION OF ERROR ASSERTI NG VIOLATION OF SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES Kelley contends the trial court violated his Sixth Amendment right to confront witnesses against him when it admitted the out

- of

- court statement s “linking [him] to distribution of
narcotics” ove r his hearsay objections because he was unable to cross

- examine the declarants

. In support of his constitutional complaint, Kelley cites Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004 ). In Crawford , t he Supreme Court held that the Sixth
Amendment bars admission of out

- of

- court statement s “testimonial ” in nature at trial unless the
declarant is unavailable and the defendant previously had the opportunity to cross

- examine the
declarant. 541 U.S. at 59 , 124 S.Ct. at 1369

. But Kelley ’s reliance on Crawford is misplaced
because

— as the State correctly points out in its brief

— he has failed to preserve his constitutional complaint for appellate review

. A hearsay objection raised at trial is not sufficiently s pecific to preserve a Confrontation Clause complaint brought on appeal because t he two are neither synonymous nor necessarily
coextensive. Holland v. State , 802 S.W.2d 696, 700 (Tex.Crim.App. 1991)

. To preserve a complaint for appellate review, a party m ust make a timely request, objection, or motion with sufficient specificity to inform t he trial court of the basis for his complaint, unless the basis is apparent from the cont ext. T EX .R.A PP .P. 33.1(a)(1)(A). The rationale for requiring a party to
preserve at trial the specific error about which he complains on appeal is two

- fold. First, requiring a party to object at trial permits the trial court or opposing party t o respond or cure the problem before it becomes error

. Reyna v. State , 168 S.W.3d 173, 179 (Tex.Crim.App. 2005).5

Second, requiring a party to lodge an objection at trial affords t he trial court the opportunity to rule upon the rationale articulated by the complainant on appeal. Reyna , 168 S.W.3d at 178. Here, Kelley never a rgued to the trial court that the admission of the informant’s

out

- of

- court statements violated his Sixth Amendment right to confront the informant

. Instead, he argued that the testimony in issue was inadmissible as hearsay. But his hearsay objection s

we re not broad enough to en compass additional, unstated objection s based on the constitutional right to confront because th e hears ay and confrontation doctrines are neither synonymou s nor necessarily coextensive. Put simply, Kelley ’s hearsay objections were not specific enough to
alert the trial court to his additional, unstated confrontation complain t

. Thus, t he trial court was never given the opportunity to rule on the admissibility of evidence on this basis , much less given the opportunity to cure the al leged problem before it became error

. Because a hearsay objection is not sufficiently specific to encompass a confrontation complaint , Kelley has failed to preserve his complaint for appellate review

. 1 See T EX .R.A PP .P. 33.1(a); Davis v. State , 313 S.W.3d 317, 347 (Tex.Crim.App. 2010) ( holding that Confrontation Clause claims are subject to preservation requirement) ; Paredes v. Sta te, 129 S.W. 3d 530, 53 5

- 3 6 (Tex.Crim.App. 2004) ( holding that Confrontation Clause complaint required contemp oraneous objection); Holland , 802 S.W.2d at
700 (“It would thus appear that appellant waived any claim that admission of the out

- of

- court statement of the child in this cause violated his right to confrontation.”). Kelley’s issue is overruled.
CONCLUSION The trial court’s judgment is affirmed

.

1 Kelley did not acknowledge the issue of er ror preservation in his brief, n or did he address it in a reply brief

.6

June 18, 2015 YVONNE T. RODRIGUEZ, Justice
Be fore McClure, C.J., Rodriguez, and Hughes, JJ. (Do Not Publish)