DIANE LARKINS MONTGOMERY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed September 15, 2009.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-00794-CR
............................
DIANE LARKINS MONTGOMERY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 59th District Court
Grayson County, Texas
Trial Court Cause No. 051505
.............................................................
MEMORANDUM OPINION
Before Chief Justice Thomas and Justices Lang and Lang-Miers
Opinion By Justice Lang
        Diane Larkins Montgomery appeals the trial court's judgment convicting her of arson with the intent to damage or destroy a habitation. Following a plea of not guilty, the jury found Montgomery guilty and assessed punishment at five years' imprisonment. Montgomery raises a single issue on appeal, arguing the trial court erred when it admitted testimony regarding her examination under oath conducted to settle a civil claim for insurance proceeds. We conclude the trial court did not abuse its discretion. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        On July 9, 2002, a fire destroyed the residence in which Montgomery and her family lived. The residence was insured through National Lloyd's Insurance. Montgomery made a claim for the insurance proceeds, and the insurance company exercised its right to conduct an examination under oath on November 6, 2002.
        In April 2004, Montgomery was indicted for arson with the intent to damage or destroy a habitation. During trial, the State attempted to introduce the examination under oath into evidence. Montgomery objected pursuant to Texas Rule of Evidence 804(b), arguing she did not have the “opportunity to develop testimony through cross or direct or anything else at the time [the examination under oath was taken].” The prosecution responded the examination under oath was not hearsay, “which is what 804 is talking about,” but rather a “statement against her own interest” and was therefore admissible. The trial court overruled Montgomery's objection to an “extent,” excluding the examination under oath, but allowing the prosecution to “question the [records custodian] about any admissions that the defendant may have made during the course of that statement . . . .” Montgomery agreed to “make objections as we proceed [one sentence at a time],” but requested the trial court “have the record reflect we still object under 804.” Then, without objection, the prosecutor read several questions from the examination under oath and had the records custodian read the answers to those questions to the jury. Also, Montgomery asked a question about the examination under oath and had the records custodian read that answer.
        The jury found Montgomery guilty and assessed punishment at five years' imprisonment. Montgomery filed a motion for new trial. The record is silent as to the disposition of that motion. This appeal timely followed.
II. ADMISSION OF EVIDENCE
 
        In her sole issue, Montgomery asserts the trial court erred when it allowed statements from her examination under oath to be read to the jury over her timely objection. She contends that because any statements made during the examination under oath were to facilitate settlement of a civil claim, those statements could not be offered in a criminal prosecution against her. Then, she asserts her statements in the examination under oath were inadmissible under Texas Rule of Evidence 408 because they were made in an effort to compromise Montgomery's claim for insurance proceeds. In the alternative, Montgomery argues her statements in the examination under oath were hearsay not subject to an exception pursuant to Texas Rule of Evidence 804 because she was not represented by counsel at the time of the examination under oath and did not have the ability to develop her testimony. The State responds (1) Montgomery's statements in the examination under oath were admissions by a party-opponent, and were therefore not hearsay pursuant to Rule 801(e)(2)(A), and (2) Montgomery failed to preserve her point on appeal by not objecting to each statement from the examination under oath as it was read to the jury.
A. Standard of Review
 
        A trial court's decision to admit evidence is reviewed under an abuse of discretion standard. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). A trial court does not abuse its discretion as long as the decision to admit evidence is within the “zone of reasonable disagreement.” Id.; Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). The court of appeals may not substitute its own decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). If the record supports the trial court's decision on the admission of evidence, there is no abuse of discretion, and the decision of the trial court will not be reversed. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002); Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990).
B. Applicable Law
 
        Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, that is offered to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay statements are generally inadmissible. Tex. R. Evid. 802. Texas Rule of Evidence 804 provides exceptions to the hearsay rule when the declarant is unavailable to testify. Tex. R. Evid. 804. One of these exceptions is for the testimony of a witness at another hearing of the same or a different proceeding. Tex. R. Evid. 804(b)(1). In a criminal case, the party against whom the testimony is offered must have had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination at the prior hearing. Id. However, a statement is not hearsay if it is offered against a party and is the party's own statement. Tex. R. Evid. 801(e)(1)(A); see Johnson v. State, 208 S.W.3d 478, 507 (Tex. App.-Austin 2006, pet. ref'd).
C. Application of the Law to the Facts
 
        Montgomery asserts her statements in the examination under oath were inadmissible under Rule 408 because they were made in an effort to compromise her claim for insurance proceeds. However, Montgomery did not object at trial to the admission of the examination under oath on the ground she raises on appeal. Because this argument on appeal does not comport with her objection at trial, this complaint presents nothing for our review. Tex. R. App. P. 33.1; see Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998) (citing Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995)); Smith v. State, 176 S.W.3d 907, 918 (Tex. App.-Dallas 2005, pet. ref'd).
        In the alternative, Montgomery argues her statements in the examination under oath were inadmissible hearsay that should have been excluded because she was not represented by counsel and did not have the opportunity to develop her “testimony” as required to establish a hearsay exception under Rule 804(b)(1). Rule 804(b)(1) creates an exception to the hearsay rule, but has no application if the declarant's out-of-court statement is not hearsay. See Johnson, 208 S.W.3d at 507; Kemmerer v. State, 113 S.W.3d 513, 518 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd). A statement is not hearsay when it is offered against a party and is the party's own statement. Tex. R. Evid. 801(e)(2)(A); see Johnson, 208 S.W.3d at 507.
        Montgomery acknowledges “it appears the state was also urging an admission by party opponent exception to the hearsay rule as a basis for admission.” In response to her objection at trial, the State argued the examination under oath was not hearsay, “which is what 804 is talking about,” but was a “statement against [Montgomery's] own interest.” Montgomery asserts her statements from the examination under oath do not qualify as an admission by a party-opponent because there is no evidence she “ever manifested a belief in the truth of the matters asserted” in the examination under oath. We disagree.
        There are five ways a statement offered against a party may be considered an admission by a party-opponent, and therefore not hearsay, only one of which is a party “manifest[ing] an adoption or belief” in the truth of a statement. See Tex. R. Evid. 801(e). A statement offered against a party that is the “party's own statement in either an individual or representative capacity” is also not hearsay. See Tex. R. Evid. 801(e)(2)(A). Further, the records custodian testified Montgomery provided the answers in the examination under oath and signed the transcript in front of a notary, “agree[ing] that the answers were typed down as she stated them during this examination.” Accordingly, the State established the statements in the examination under oath were Montgomery's statements and that Montgomery “manifested an adoption or belief in” the truth of those statements when she signed the transcript. See Tex. R. Evid. 801(e)(2)(A)-(B).
        The statements in the examination under oath were admissions by Montgomery and were not hearsay. See id. Because Montgomery's examination under oath was not hearsay when offered against her, no hearsay exception was needed to admit the statements and her Rule 804(b)(1) objection was ill-founded. See Johnson, 208 S.W.3d at 507 (appellant's civil deposition when offered against her in criminal proceeding not hearsay pursuant to Rule 801(e)(2)(A) and therefore Rule 804(b)(1) was “inapplicable”); Kemmerer, 113 S.W.3d at 518 (appellant's civil deposition testimony used against her at her criminal trial not hearsay pursuant to Rule 801(e)(2)(A) and Rule 804(b)(1) “irrelevant”). Accordingly, we conclude the trial court did not abuse its discretion when it admitted testimony regarding Montgomery's examination under oath. Montgomery's sole issue is decided against her.
III. CONCLUSION
 
        The trial court did not abuse its discretion when it admitted testimony regarding Montgomery's examination under oath. The trial court's judgment is affirmed.
 
 
 
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
 
 
Do Not Publish
Tex. R. App. P. 47
080794F.U05