Hassan Ali Pejouhesh v. The State of Texas--Appeal from 185th District Court of Harris County

Affirmed and Memorandum Opinion filed August 30, 2007

Affirmed and Memorandum Opinion filed August 30, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00440-CR

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HASSAN ALI PEJOUHESH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1016980

M E M O R A N D U M O P I N I O N

Appellant, Hassan Ali Pejouhesh, pleaded guilty to driving while intoxicated, without an agreed recommendation regarding punishment. After a punishment hearing, the trial court sentenced appellant to five years= confinement. In his sole issue, appellant contends the trial court considered information at the punishment hearing in violation of appellant=s constitutional right to confrontation. Our disposition is based on settled law. Accordingly, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.[1]

Discussion

Appellant cites two instances in which the trial court allegedly considered information at the punishment hearing in violation of appellant=s constitutional right to confrontation: (1) during the evidentiary portion of the hearing; and (2) during the State=s closing argument.

Evidentiary Portion of the Hearing

During the evidentiary portion of the hearing, pursuant to an apparent agreement with appellant=s counsel, the State summarized the facts of the offense. The State also informed the trial court of appellant=s previous charges or convictions for impersonating a public servant, driving while intoxicated, failure to identify, and driving while license suspended. In addition, the State mentioned that appellant was charged with driving while his license was suspended while he was free on bond for the present case. The State explained the charge was dismissed because the prosecutor assigned to that case determined he would experience difficulty proving appellant drove on a public roadway. Then, the State asserted,

. . . Judge, don=t shoot the messenger. I only say that because when that case was filed, we called the officer and he told us that he had been watching him drive for five blocks. I=ve read the offense report. I=ve talked to the chief down there and - -

Appellant contends this comment violated his constitutional right to confrontation because the officer=s statement suggesting appellant drove on a public roadway was Atestimonial.@ See U.S. Const. amend. VI (guaranteeing accused=s right Ato be confronted with the witnesses against him@); Crawford v. Washington, 541 U.S. 36, 68 (2004) (holding that, pursuant to the Confrontation Clause, an out of court Atestimonial@ statement is inadmissible unless the declarant is unavailable and the defendant has had a prior opportunity for cross examination). However, appellant did not object to the comment. A party waives a complaint that admission of evidence violates his constitutional right to confrontation by failing to object on that ground. See Tex. R. App. P. 33.1(a)(1); Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000); Grant v. State, 218 S.W.3d 225, 228B29 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d).

Appellant contends his failure to object was excused under a Aright not recognized@ exception to this rule. See Black v. State, 816 S.W.2d 350, 368 (Tex. Crim. App. 1991) (Campbell J., concurring) (explaining, under Aright not recognized@ exception, a defendant is excused from objecting if (1) a claim was so novel that the basis of the claim was not reasonably available at the time of trial, or (2) the law was so well settled by the Court of Criminal Appeals that an objection at the time of trial would have been futile). Appellant acknowledges his punishment hearing was conducted after issuance of Crawford. Nevertheless, he contends his complaint was Anovel@ because the Court had not yet issued the Acontrolling@ case, Hammon v. Indiana. In Hammon, consolidated with Davis v. Washington, the United States Supreme Court further refined the standard for determining whether statements obtained as a result of police interrogations are Atestimonial.@ See Davis v. Washington, 126 S. Ct. 2266 (2006). Specifically, the Court held:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Id. at 2273B74.

However, any Aright not recognized@ exception is inapplicable in this case.[2] Appellant does not challenge a statement obtained by police, as addressed in Davis and Hammon. Rather, he challenges a statement obtained from a police officer by a prosecutor. Appellant contends that the officer=s statement was Atestimonial@ because the State contacted the officer seeking information primarily for purposes of criminal prosecution. Even in Crawford, while declining to comprehensively define Atestimonial,@ the Court noted three formulations of Acore@ testimonial evidence including: Astatements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.@ Crawford, 541 U.S. at 51B52. Thus, at the punishment hearing, appellant should have been aware that a statement obtained by a prosecutor from a police officer regarding the facts of an offense may be Atestimonial.@

Moreover, even before Crawford, a defendant was required to preserve his right to confrontation through a timely and specific objection. See Bunton v. State, 136 S.W.3d 355, 369 (Tex. App.CAustin 2004, pet. ref=d) (finding defendant waived complaint regarding alleged denial of his constitutional right to confront witnesses by failing to object at trial despite subsequent issuance of Crawford); see also Courson v. State, 160 S.W.3d 125, 128S129 (Tex. App.CFort Worth 2005, no pet.) (same). Although the Crawford Court Asubstantially altered the law with respect to the . . . Confrontation Clause and the relationship of that clause to the rules of evidence,@ the constitutional right to confront one=s accusers is neither new nor novel. Bunton, 136 S.W.3d at 369; see Courson, 160 S.W.3d at 129. Accordingly, appellant waived his complaint regarding the State=s comment at issue by failing to object.

 State=s Closing Argument

Appellant also contends that a remark made by the State during closing argument violated appellant=s constitutional right to confrontation. The State had already established appellant was previously convicted for impersonating a public servant. During argument, the State mentioned another similar charge that was dismissed. Relative to both charges, the State asserted, without objection:

. . . he was a fire extinguisher inspector, yet had two different instances where he actually was posing as a fire marshal and threatening retailers . . .

Appellant seems to acknowledge his trial counsel should have objected to this remark on the ground the State argued facts outside the evidence. However, appellant also characterizes the State=s comment as evidentiary. He asserts the State conveyed information obtained strictly for purposes of prosecution. Thus, appellant argues the information was Atestimonial,@ and his failure to object was excused based on the subsequent decisions in Hammon and Davis. We disagree.

We note the State did not express how it obtained the information concerning these previous offenses; i.e. whether it gleaned the facts from an offense report, police officer, complainant, or some other source. Regardless, again, appellant=s claim that the State=s recitation of facts concerning previous offenses may have violated his right to confrontation is not novel. Therefore, even if the State=s comment during closing argument constituted evidence, appellant waived his complaint by failing to object.

Accordingly, we overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed August 30, 2007.

Panel consists of Justices Yates, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] As a preliminary matter, in his brief, appellant addresses the fact that his notice of appeal was not file-marked and thus does not reflect it was timely filed. However, the district clerk subsequently filed a certificate reflecting the notice of appeal was timely filed.

[2] The Court of Criminal Appeals has recently stated that the Aright not recognized@ exception is inconsistent with the current Texas law of error preservation. See Sanchez v. State, 120 S.W.3d 359, 365, 367 (Tex. Crim. App. 2003); Smith v. State, No. 08 03 00359 CR, 2005 WL 1303309, *3 (Tex. App.CEl Paso May 31, 2005, pet. dism=d, untimely filed) (not designated for publication) (recognizing Aright not recognized@ exception has been generally eliminated from Texas jurisprudence); but see Aguirre v. State, No. 01 06 00417 CR, 2007 WL 1775979, *5 n.5 (Tex. App.CHouston [1st Dist.] June 21, 2007, no pet.) (not designated for publication) (suggesting exception may still be viable). Regardless, even if the exception were still viable in some instances, it does not apply in this case.