NAKAI DEWAYNE ASKEW v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice Murphy

Nakai Dewayne Askew appeals his conviction for aggravated robbery with a deadly weapon and sentence of twenty-five years' incarceration, arguing in two issues that (1) the trial court's consideration of a victim-impact statement violated his Sixth Amendment confrontation rights, and (2) article 56.03 of the code of criminal procedure conflicts with constitutional notions of due process and the right of confrontation.   We affirm.

Background

Askew waived his right to a jury trial and entered a non-negotiated plea of no contest to the offense of aggravated robbery with a deadly weapon.   After a trial, the trial court found that the evidence substantiated Askew's guilt and deferred the case for the preparation of a presentence investigation report.

At the sentencing hearing, the State noted that there was a victim-impact statement.   Askew objected, citing the Confrontation Clause of the Sixth Amendment.   The State responded that the person who completed the victim-impact statement was present in the courtroom.   The trial court recessed without deciding Askew's objection.   Neither the presentence investigation report nor the victim-impact statement is in the record for our review.

The trial court found Askew guilty of aggravated robbery with a deadly weapon and stated it would review the presentence investigation report.   Both sides confirmed they had an opportunity to review the victim-impact statement.   When the trial court asked if Askew had any comments, he again objected.   The trial court overruled the objection and sentenced Askew to twenty-five years' incarceration.   Askew filed a motion for new trial, in which he argued “the verdict is contrary to the law and the evidence.”   The record does not include the trial court's ruling on this motion.   This appeal followed.

Discussion

Violation of Confrontation Clause

In his first issue, Askew argues the trial court's consideration of the statement violates the Confrontation Clause of the Sixth Amendment.   Askew's briefing combines argument for both this and his second issue without separation.

Askew's plea agreement contained multiple admonitions and specifically contained a section entitled “DEFENDANT'S STATEMENTS AND WAIVERS.”   Under this section was a provision stating in relevant part:

I waive arraignment and reading of the charging instrument, the appearance, confrontation, and cross-examination of witnesses on the issues of guilt and punishment ․  I consent to the oral or written stipulation of evidence or testimony, to the introduction of testimony by affidavits or written statements of witnesses, and to all other documentary evidence.

(Emphasis added.)   Askew, his attorney, the State, and the trial court each signed and dated the plea agreement.   The State argues this “statement and waiver” in Askew's plea agreement waived any right he had to challenge the trial court's consideration of the victim-impact statement on the basis that it violated his rights under the Confrontation Clause.   We agree and resolve this argument in the State's favor without addressing Crawford issues as to whether the statement was testimonial.   See Crawford v. Washington, 541 U.S. 36 (2004).

The Sixth Amendment to the United States Constitution provides that in “all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him[.]”  U.S. Const. amend.   VI. This right to confront witnesses may be waived.  Stringer v. State, 241 S.W.3d 52, 56 (Tex.Crim.App.2007).   For a waiver to be effective, “it must be clearly established that there was an intentional relinquishment or abandonment of a known right or privilege.”  Id. (quoting Brookhart v. Janis, 384 U.S.1, 4 (1966)).   The determination of whether there has been an intelligent waiver “must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”  Tacon v. Arizona, 410 U.S. 351, 355 (1973) (Douglas, J., dissenting);  Stringer, 241 S.W.3d at 56.

Here, Askew signed and dated the plea agreement containing a specific waiver to confrontation of witnesses “on the issues of guilt and punishment.”   He stated in his acknowledgment that he read and understood the plea, his attorney explained the admonitions and warnings, and “my statements and waivers are knowingly, freely, and voluntarily made with full understanding of the consequences.”   In the attorney's acknowledgment, Askew's attorney stated that he believes Askew is competent, he advised Askew of his rights, he approves “all waivers, statements, and agreements” of Askew, and he requests the trial court accept them and Askew's plea.   The trial court's statement contains similar language indicating Askew's plea and waivers were knowingly and voluntarily made:

It appearing to the Court that the defendant is mentally competent and is represented by counsel, that the defendant understands the nature and consequences of the charge, and that all the parties have consented to and approved the waiver of jury trial and stipulations of evidence, the Court finds the waivers, agreements, and plea to have been knowingly, freely, and voluntarily made, approves the waivers and agreements, accepts the defendant's plea, [and] approves the stipulation of testimony․

Askew has not challenged the voluntariness of his plea, nor has he argued that he did not understand the consequences of his statement that he was waiving his right to confront witnesses on the issue of punishment.   Based on this record and the language of Askew's plea agreement, we conclude Askew has waived his right to challenge the trial court's consideration of the victim-impact statement.   See Rosalez v. State, 190 S.W.3d 770, 773 (Tex.App.—Fort Worth 2006, pet. ref'd);  cf.  Stringer, 241 S.W.3d at 57 (“The waiver of the right to confront and cross-examine does not refer to punishment even though, as shown by the waiver of the right to a jury, applicable to both guilt and punishment, such express language could have easily been incorporated into the waiver.”).   Askew's first issue is overruled.

Constitutional Challenge to Article 56.03

In his second issue, Askew contends article 56.03 of the code of criminal procedure relating to preparation and utilization of victim-impact statements conflicts with the constitutional notions of due process and the right of confrontation.   See Tex.Code Crim. Proc. Ann. art. 56.03 (West Supp.2010).   Specifically, he argues the statute (1) requires trial court approval to challenge inaccuracies, (2) strictly construed, prohibits an accused from knowing the name of the victim, and (3) shifts the burden to the accused to call the victim as an adverse witness.   Because Askew relies on the text of article 56.03 rather than the facts involving its application to him, we interpret this to be a facial challenge to the constitutionality of the statute.   See Scott v. State, 322 S.W.3d 662, 665 n.1 (Tex.Crim.App.2010) (claim that statute is unconstitutional “on its face” is claim that statute, by its terms, always operates unconstitutionally);  see also Karenev v. State, 281 S.W.3d 428, 435 (Tex.Crim.App.2009) (Cochran, J., concurring) (facial challenge based solely upon face of statute, while applied challenge depends upon evidence adduced).

Importantly, a facial challenge to the constitutionality of a statute cannot be raised for the first time on appeal.  Karenev, 281 S.W.3d at 434.   To preserve a complaint for appellate 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);  Layton v. State, 280 S.W.3d 235, 238–39 (Tex.Crim.App.2009).   It is also well settled that the legal basis of a complaint raised on appeal cannot vary from that raised at trial.  Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App.2004);  see also Lawson v. State, 283 S.W.3d 438, 443–44 (Tex.App.—Fort Worth 2009, pet. ref'd).   A reviewing court should not 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).

Here, Askew objected twice at trial, both times stating simply that he objected “under the confrontation clause of the Sixth Amendment of the U.S. Constitution” or he would continue his “objection on the confrontational clause issues on the Sixth Amendment.”   At no time did he mention the statute or otherwise argue it was facially unconstitutional.   Nor did he mention article 56.03 or its alleged unconstitutionality in his motion for new trial.

To preserve a complaint, “ ‘[m]agic words' are not required;  a complaint will be preserved if the substance of the complaint is conveyed to the trial judge.”  Bennett v. State, 235 S.W.3d 241, 243 (Tex.Crim.App.2007);  see also Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992) (“As regards specificity, all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.”).

Askew's objections here did not inform the trial court that he believed article 56.03 is facially unconstitutional, especially in light of the fact that he never mentioned article 56.03.   See Gillenwaters v. State, 205 S.W.3d 534, 538 (Tex.Crim.App.2006) (constitutional challenge to statute not preserved when appellant never mentioned to trial court specific theory of overbreadth).   The trial court could have interpreted Askew's objections as Askew's contention that the Confrontation Clause required that he have the right to confront the witness who provided the victim-impact statement—the same argument Askew asserts as his first issue and for which he cites the same objections as the basis for preservation.   See Grant v. State, 218 S.W.3d 225, 229 (Tex.App.—Houston [14th Dist.] 2007, pet. ref'd).   Askew did not raise a facial challenge to the constitutionality of article 56.03 under either the Due Process or Confrontation Clause in the trial court.   He therefore has not preserved this issue for our review.   See Karenev, 281 S.W.3d at 434.¹  We overrule Askew's second issue.

Conclusion

Having overruled Askew's two issues, we affirm the trial court's judgment.

FOOTNOTES

FN1. Even if Askew had preserved his complaint on appeal, a “facial challenge to a statute is the most difficult challenge to mount successfully because the challenger must establish that no set of circumstances exists under which the statute will be valid.”  Santikos v. State, 836 S.W.2d 631, 633 (Tex.Crim.App.1992).   Because “a statute may be valid as applied to one set of facts and invalid as applied to another, it is incumbent upon the appellant to show the statute is unconstitutional as to him in his situation;  that it may be unconstitutional as to others is not sufficient.”  Id. (internal quotations omitted).   Here, not only was the victim who provided the statement in the courtroom when Askew objected to the trial court's consideration of the statement, but Askew identifies in his brief the witness who provided the statement—a witness whom Askew cross-examined earlier in his trial.   See Crawford, 541 U.S. at 59 n.9 (“Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”).   In addition, Askew never argued that he did not have sufficient time to read the statement or that he was not provided the opportunity to comment on any inaccuracies contained therein.   See Truehitt v. State, 916 S.W.2d 721, 722–23 (Tex.App.—Beaumont 1996, no pet.)..  FN1. Even if Askew had preserved his complaint on appeal, a “facial challenge to a statute is the most difficult challenge to mount successfully because the challenger must establish that no set of circumstances exists under which the statute will be valid.”  Santikos v. State, 836 S.W.2d 631, 633 (Tex.Crim.App.1992).   Because “a statute may be valid as applied to one set of facts and invalid as applied to another, it is incumbent upon the appellant to show the statute is unconstitutional as to him in his situation;  that it may be unconstitutional as to others is not sufficient.”  Id. (internal quotations omitted).   Here, not only was the victim who provided the statement in the courtroom when Askew objected to the trial court's consideration of the statement, but Askew identifies in his brief the witness who provided the statement—a witness whom Askew cross-examined earlier in his trial.   See Crawford, 541 U.S. at 59 n.9 (“Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”).   In addition, Askew never argued that he did not have sufficient time to read the statement or that he was not provided the opportunity to comment on any inaccuracies contained therein.   See Truehitt v. State, 916 S.W.2d 721, 722–23 (Tex.App.—Beaumont 1996, no pet.).

MARY MURPHY JUSTICE