COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-17-00323-CR

SCOTT PAUL WAYNE APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

TRIAL COURT NO. 58,479-B

----------

MEMORANDUM OPINION1

----------

I. INTRODUCTION

Appellant Scott Paul Wayne appeals his conviction for aggravated assault 

with a deadly weapon for which he was sentenced to ten years’ imprisonment. In 

a single point, Wayne argues that the trial court abused its discretion by 

 

1See Tex. R. App. P. 47.4.
2

overruling his hearsay objection to a child’s statement that “Daddy is trying to kill 

Mommy.” We will affirm.

II. BACKGROUND2

While on patrol in August 2015, Amber Bernal, an animal control officer 

with the City of Wichita Falls, saw two toddlers who were wandering around

outside a home without adult supervision and radioed dispatch to notify the police 

department about the situation. An officer arrived on the scene in less than ten 

minutes. 

Bernal stayed on the scene while the officer knocked on the door. Shortly 

thereafter, a thirteen-year-old girl and a ten-year-old boy came running out of the 

house. Bernal testified without objection that the girl screamed, “He’s going to kill 

her. He’s going to kill her.” 

Officer Donald Cole with the Wichita Falls Police Department testified that 

he responded to the dispatch for a welfare check on the two toddlers who were 

reported as “either in the street or getting into the street.” When Officer Cole 

arrived, he found the two toddlers playing inside a playhouse on a porch. Officer 

Cole knocked on the door to inform the parents that their children had been near 

the street. As soon as Officer Cole knocked, the door opened, and two children, 

who were older than the toddlers and who appeared scared, ran out of the 

 

2Because Wayne does not challenge the sufficiency of the evidence to 

support his conviction, we omit a detailed factual background and instead set 

forth only the facts that are pertinent to the issue he raises on appeal.
3

house. Over Wayne’s objection, Officer Cole testified that the boy said, “Daddy 

is trying to kill Mommy.” The older children then left, and Officer Cole did not see 

where they went. 

Cara,3 who was fourteen years old at the time of the trial, testified that 

Wayne used to be her step-father. Cara testified that on the date in question, her 

younger brother Jerry came into her room and said, “Mom and Dad are fighting.” 

Cara then heard a loud bang and ran downstairs. She saw her mother lying on 

the floor, and Wayne was lying on top of her mother, pointing a knife at her and 

calling her names. Cara’s mother told her to call 911. Wayne said, “Don’t call 

911 or I’ll kill your mom and you’re next,” and told Cara to go sit on the couch. 

Shortly after Cara sat down on the couch, she saw a police officer approaching 

the door. Cara ran and unlocked the door and let the police officer in. Cara

testified without objection that she told the police officer that her dad4 was trying 

to kill her mom, and then she and Jerry ran down the street to a friend’s house. 

Jerry, who was eleven years old at the time of the trial, testified that Wayne 

was his former step-father. On the date in question, Jerry was helping his mom 

clean the kitchen when Wayne came in the kitchen and slammed his mom to the 

floor. Jerry ran upstairs to his sister’s room and told her that “Mom and Dad were 

fighting.” After hearing a loud bang, Cara went downstairs, and Jerry eventually 

 

3We use aliases throughout the opinion to refer to the children, who are 

minors. See Tex. R. App. P. 9.8 cmt., 9.10(a)(3).

4Cara testified that she used to refer to Wayne as her dad. 
4

joined her when he saw her sitting on the couch. When the police officer arrived, 

Jerry heard Cara tell the police officer, “Our dad’s trying to kill our mom.”5

Tracy Moffett, the mother of Cara and Jerry and the ex-wife of Wayne, also 

testified at trial. She provided details about what led up to the assault and 

explained that she struggled to take the knife from Wayne until the police officer 

came to the door. Moffett testified without objection that she heard one or both of 

her children say, “Daddy’s trying to kill Mommy.”

III. ANY ERROR WAS NOT PRESERVED FOR REVIEW

In his sole point, Wayne argues that the trial court abused its discretion by 

overruling his hearsay objection to Officer Cole’s testimony that Jerry said, 

“Daddy is trying to kill Mommy.” 

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. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 

670, 674 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016). A party 

must continue to object each time the objectionable evidence is offered. 

Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (citing Ethington v. 

State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)); Clay v. State, 361 S.W.3d

762, 766 (Tex. App.—Fort Worth 2012, no pet.). A reviewing court should not 

 

5This statement was admitted over Wayne’s hearsay objection. 
5

address the merits of an issue that has not been preserved for appeal. Ford v. 

State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).

Wayne argues that the trial court erred by admitting Officer Cole’s 

testimony relating the child’s statement—“Daddy is trying to kill Mommy”—over 

Wayne’s hearsay objection. After the trial court overruled Wayne’s objection

during Officer Cole’s testimony, Wayne did not seek a running objection. The 

State points out that the challenged statement was subsequently admitted 

without objection during Cara’s testimony and that Moffett’s testimony was 

referenced in Bernal’s testimony, which preceded Officer Cole’s testimony. 

Because an objection was not lodged each time the challenged statement was 

made, the alleged error in admitting the statement during Officer Cole’s testimony 

is not preserved for our review. See Clay, 361 S.W.3d at 767 (“[B]ecause 

Wallace provided testimony about the Louisiana records without objection before 

and after appellant’s objection to the admission of the records and because 

appellant failed to obtain a running objection, we conclude that he forfeited his 

objection to the records’ admission.”). 

Within his sole point, Wayne also contends that “[t]he hearsay exception 

for the introduction of an excited utterance must yield to the right of confrontation 

granted to all those accused” and that “[t]he record of this case is void as regards 

an analysis by the court as to the issues of unavailability and prior opportunity to 

cross-examine the declarant of the alleged utterance.” However, Wayne raised 
6

no Confrontation Clause objection in the trial court.

6

 Because the Confrontation 

Clause argument asserted on appeal was not raised at trial, it also is not 

preserved for our review. See Leza v. State, 351 S.W.3d 344, 360–61 (Tex. 

Crim. App. 2011) (holding that appellant failed to preserve constitutional 

argument raised on appeal because “he never alerted the trial court in any way 

that exclusion of the statement would violate any federal constitutional right”); 

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

[appellant] ‘did not clearly articulate’ that the Confrontation Clause demanded 

admission of the evidence, the trial judge ‘never had the opportunity to rule upon’ 

this rationale.”).

Having determined that the arguments raised here have not been 

preserved for our review, we overrule Wayne’s sole point.

IV. CONCLUSION

Having overruled Wayne’s sole point, we affirm the trial court’s judgment.

/s/ Sue Walker

SUE WALKER

JUSTICE

PANEL: WALKER, MEIER, and BIRDWELL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: August 9, 2018

 

6

In the trial court, Wayne had the opportunity to cross-examine both Cara 

and Jerry.