Tory Lee Miller v. The State of Texas--Appeal from 173rd District Court of Henderson County

  NO. 12-06-00180-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TORY LEE MILLER, APPEAL FROM THE 173RD

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Tory Lee Miller appeals his conviction for aggravated robbery, for which he was sentenced to imprisonment for twenty years. In two issues, Appellant argues that the trial court committed reversible error by denying his constitutional right to confront the witnesses against him. We affirm.

Background

Appellant was charged by indictment with aggravated robbery and pleaded not guilty. The matter proceeded to jury trial. At trial, former Athens Police Officer Michael Murphy testified on the State s behalf. Murphy testified that he conducted the investigation concerning the robbery in question. Murphy further testified that, during his investigation, he received a tip from a confidential informant, who stated that Appellant had participated in the robbery and was staying at the home of Melba Langford and family. Murphy testified that he went to the Langford residence and met with Melba Tina Langford, who told him that Appellant had committed the robbery. Murphy stated that, prior to trial, the Langfords had moved and no one was able to find them in order to summon Langford to appear at trial. Thereafter, Murphy offered further testimony concerning information Langford related to him.

Following the close of evidence and arguments of counsel, the jury found Appellant guilty as charged. The matter proceeded to a trial on punishment. Ultimately, the jury assessed Appellant s punishment at imprisonment for twenty years. The trial court sentenced Appellant accordingly, and this appeal followed.

Confrontation Clause

In his first and second issues, Appellant argues that he was denied his right to confront Langford, which amounted to reversible error. We review a trial court s rulings on whether to admit or exclude evidence for an abuse of discretion. See Montgomery v. State, 810 S.W.2d 372, 390-91 (Tex. Crim. App. 1991) (op. on reh g); Thornton v. State, No. 12-04-00045-CR, 2006 WL 319015, at *2 (Tex. App. Tyler Feb. 10, 2006, pet. ref d) (mem. op., not designated for publication). If the court s ruling is within the zone of reasonable disagreement, we will not disturb it on appeal. Metts v. State, 22 S.W.3d 544, 550 (Tex. App. Fort Worth 2000, pet. ref d). If we can uphold the trial court s decision on any theory applicable to the case, we will do so. Id. In considering this constitutional issue, we review the trial court s ruling de novo. Muttoni v. State, 25 S.W.3d 300, 304 (Tex. App. Austin 2000, no pet.).

The accused in a criminal case has a constitutional right to confront and cross examine the witnesses against him. U.S. Const. amends. VI, XIV. The admission of hearsay evidence against a criminal defendant implicates the Confrontation Clause because the defendant is not afforded the opportunity to confront the out of court declarant and cross examine him or her regarding any testimonial statements. See U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36, 41, 124 S. Ct. 1354, 1359, 158 L. Ed. 2d 177 (2004); Wall v. State, 184 S.W.3d 730, 734 (Tex. Crim. App. 2006).

To preserve error on Confrontation Clause grounds, an objection must be made at trial as soon as the basis for such objection becomes apparent. SeeWright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App.2000); Thornton, 2006 WL 319015, at *2.

In the case at hand, Appellant failed to object to Murphy s testimony concerning what Langford told him. As such, we hold that by his failure to object, Appellant has waived the error of which he now complains. Appellant s first and second issues are overruled.

Disposition

Having overruled Appellant s first and second issues, we affirm the trial court s judgment.

SAM GRIFFITH

Justice

Opinion delivered May 2, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)