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holding that an ongoing emergency existed where the 911 caller described a situation involving an intoxicated driver who was a danger to the general public on the roadway
Summary of this case from Wisenbaker v. StateOpinion
No. 08-14-00093-CR
03-09-2016
FRANCIS J. FORD, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from the County Criminal Court No. 1 of Tarrant County, Texas (TC# 1289518) OPINION
Appellant Francis J. Ford was convicted of driving while intoxicated and given a probated sentence. In one issue on appeal, Appellant contends the trial court violated his Sixth Amendment right to confront witnesses when it admitted a 911 recording at his jury trial. We conclude Appellant's rights were not violated and affirm.
This appeal was transferred from the Fort Worth Court of Appeals, and we apply the precedent of that Court to the extent required by TEX.R.APP.P. 41.3.
BACKGROUND
Appellant was driving with his girlfriend, Sonia Walker, around 2 a.m. on June 23, 2012, when Walker placed a call to 911 and reported that Appellant was very intoxicated and driving dangerously, and that she needed "some help." Based on Walker's description of the vehicle and its location, a police officer was dispatched to the scene who located the vehicle as it was pulling off a frontage road into a restaurant parking lot.
The officer testified that when he spoke to Appellant, he detected a "strong odor of alcoholic beverage emitting from his breath," and noted that Appellant's speech appeared slurred. The officer also observed that Appellant's eyes were red and glossy. The officer recalled that Appellant had difficulty maintaining his balance as he exited the vehicle, and appeared "[s]luggish, a little sloppy [and] not very organized," as he was "fumbling around in his pockets trying to look for his license." Appellant advised the officer that he and Walker had been involved in an argument shortly before the officer arrived, and admitted that he had been drinking earlier in the evening. The officer performed a series of standardized field sobriety tests, and concluded that Appellant failed all of the tests. Appellant was placed under arrest and transported to the police station, where he refused to give a breath test or a blood specimen, and denied that he had been driving while intoxicated. Appellant was thereafter charged with one misdemeanor count of DWI.
Appellant filed a motion in limine before trial seeking to prevent the State from admitting the recording of Walker's 911 call into evidence. Appellant argued that his Sixth Amendment right to confront witnesses would be violated if the trial court allowed the jury to hear the recording of the 911 call because the State had failed to secure Walker's attendance at trial, thereby preventing his defense counsel from being able to cross-examine her on the witness stand. Appellant contended that Walker's statements made during the 911 call were "testimonial" in nature, and likened the 911 dispatcher's questioning of her as being analogous to a police interrogation. The trial court denied the motion.
At trial, the State played a redacted version of the recording after verifying its authenticity through the testimony of a 911 call center supervisor. The State further presented the testimony of the arresting officer and a video of Appellant when he was in the intoxylzer room at the police station shortly after his arrest.
The trial court allowed the recording to be redacted to omit various negative statements Walker made about Appellant and their relationship. The parties thereafter agreed to the portions of the recording to be redacted, and Appellant lodged a running objection to admission of the remainder of the recording.
Following trial, the jury found Appellant guilty of DWI as charged. The State and Appellant agreed on a proposed punishment, which included a 90-day jail sentence probated for 18 months. The trial court accepted the proposed punishment, and entered a judgment reflecting that sentence.
DISCUSSION
Appellant contends the trial court erred by admitting the 911 recording, arguing that its admission violated his Sixth Amendment right to confrontation under the United States Supreme Court's holding in Crawford v. Washington. We disagree.
Standard of Review and Applicable Law
The Confrontation Clause of the Sixth Amendment provides that the accused enjoys the right to confront witnesses in all criminal prosecutions. Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 1369, 158 L.Ed.2d 177 (2004). The Confrontation Clause bars the admission of a declarant's out-of-court statements that are "testimonial" in nature unless the declarant is unavailable to testify at trial, and the defendant had a prior opportunity to cross-examine the declarant. Id. In Rangel v. State, the Fort Worth Court of Appeals recognized the distinction Crawford drew between testimonial and non-testimonial statements, and instructed that the "threshold question" whether a statement admitted into evidence violated the Confrontation Clause under Crawford is whether the statement was "testimonial in nature." Rangel v. State, 199 S.W.3d 523, 532-33 (Tex.App. - Fort Worth 2006), pet. dism'd, 250 S.W.3d 96 (Tex.Crim.App. 2008); see also Woods v. State, 152 S.W.3d 105, 113 (Tex.Crim.App. 2004) (also recognizing that Crawford drew a distinction between testimonial and non-testimonial statements in determining whether the Confrontation Clause is implicated). Whether a statement is testimonial in nature is a question of law that an appellate court reviews de novo. See Langham v. State, 305 S.W.3d 568, 576 (Tex.Crim.App. 2010); see also Davis v. State, 268 S.W.3d 683, 704 (Tex.App. - Fort Worth 2008, pet. ref'd) (question whether a statement is testimonial is reviewed de novo by appellate court, as trial judges are in no better position than are appellate judges in answering that question, as the answer does not depend upon demeanor, credibility, or other criteria peculiar to personal observation by the trial court).
In Crawford, the Supreme Court described three categories of "core" testimonial evidence: (1) "ex parte in-court testimony or its functional equivalent," such as affidavits, custodial examinations, prior testimony not subject to cross-examination, or "similar pretrial statements that declarants would reasonably expect to be used prosecutorially"; (2) "extrajudicial statements" of the same nature "contained in formalized testimonial materials"; and (3) "statements 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 51-52, 124 S.Ct. at 1364; see also Paredes v. State, 462 S.W.3d 510, 514 (Tex.Crim.App. 2015) ("While the exact contours of what is testimonial continue to be defined by the courts, such statements are formal and similar to trial testimony.") (citing Burch v. State, 401 S.W.3d 634, 636 (Tex.Crim.App. 2013)).
Shortly after issuing Crawford, the Supreme Court had the opportunity to consider whether statements made to a 911 dispatcher could be considered testimonial under its holding in Crawford. See Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). In Davis, the defendant's girlfriend had called 911, but the call was prematurely terminated. The 911 dispatcher then performed a reverse call, which the girlfriend answered. Id. at 817, 126 S.Ct. at 2270-71. The girlfriend informed the 911 dispatcher that she was currently involved in a domestic disturbance with the defendant in her home. The 911 dispatcher asked her a series of questions to ascertain the nature of the emergency and to enable the dispatcher to send police assistance to her location, including whether the defendant had been drinking, whether he had any weapons, the defendant's name, and why the defendant was at her home. Id. at 817-18, 126 S.Ct. at 2270-71. In considering whether the girlfriend's statements made in response to the dispatcher's questions were testimonial, the Court clarified "that statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency." Conversely, statements "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 813-14, 126 S.Ct. at 2268-69.
The Supreme Court noted that the key question was "whether, objectively considered, the interrogation that took place in the course of the 911 call produced testimonial statements." Id. at 826, 126 S.Ct. at 2276. In applying this objective test, the Court noted that unlike the police interrogation that occurred in Crawford, which took place at a police station and was directed solely at establishing a past crime, a 911 call is ordinarily designed primarily to describe current circumstances requiring police assistance. The Court found it significant that the girlfriend in Davis was speaking of events as they were actually happening at the time of her call, and that any "reasonable listener" would have recognized that she was facing an ongoing emergency at that time. Id. at 827, 126 S.Ct. at 2276. The Court determined that the 911 dispatcher's questions, when viewed objectively, had the "primary purpose" of eliciting a response from the caller that would enable him to take steps to resolve the emergency, and were not directed at eliciting information about the defendant's actions to be used in a future prosecution. The Court in Davis contrasted the "level of formality" found in the interrogation that took place in Crawford, where the defendant calmly answered questions at a police station, with the "frantic answers" the caller provided to the 911 dispatcher in the Davis case, which were provided while the caller was in an "environment that was not tranquil, or even ... safe." Id. at 827, 126 S.Ct. at 2276-77. The Court held that the caller in Davis was not acting as a witness or testifying at the time she made her call, and that instead, her primary purpose in calling was to "enable police assistance to meet an ongoing emergency," and that therefore, the admission of the 911 recording did not violate the defendant's Sixth Amendment right to confront witnesses. Id. at 828, 126 S.Ct. at 2277.
The Court noted that while 911 dispatchers themselves are not considered law enforcement officers, they "may at least be agents of law enforcement when they conduct interrogations of 911 callers." Davis, 547 U.S. at 823 n.2, 126 S.Ct. at 2274.
The Texas Court of Criminal Appeals has recognized that the primary focus of a court's inquiry in determining whether an out-of-court statement is testimonial must be upon the "objective purpose of the interview or interrogation, not upon the declarant's expectations." De La Paz v. State, 273 S.W.3d 671, 680 (Tex.Crim.App. 2008). Therefore, generally out-of-court statements are "testimonial" only when the surrounding circumstances objectively indicate that the primary purpose of the interview or interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, because in that setting a person making the statements is "literally bearing testimony." Id.; see Rangel, 199 S.W.3d at 534 (holding that a declarant's statements were testimonial because they were made two months after the emergency and were focused on relating past events).
The Fort Worth Court of Appeals has recognized that a court may consider at least four factors in determining whether a statement is testimonial: (1) whether the caller was describing events as they were actually occurring; (2) whether a reasonable listener would recognize that the caller was facing an ongoing emergency; (3) whether the 911 dispatcher's questions were meant to elicit responses in order to resolve the present emergency, rather than to simply learn what had happened in the past; and (4) whether the call took place in an environment that was not tranquil or was unsafe. Martinez v. State, 236 S.W.3d 361, 371-72 (Tex.App. - Fort Worth 2007, pet. dism'd, untimely filed).
Analysis of Appellant's Arguments
On appeal, Appellant does not address the first factor in the analysis, and appears to acknowledge that Walker was describing events as they were actually occurring during the 911 call. Instead, Appellant focuses on the three remaining three factors, and contends that: (1) a reasonable listener would not have believed that Walker was facing an ongoing emergency during the 911 call; (2) the 911 dispatcher's questioning of Walker went beyond what was necessary to resolve any such emergency; and (3) Walker did not provide "frantic answers" to the 911 dispatcher's questions.
Whether Walker was Reporting an Ongoing Emergency
Appellant asserts that Walker was not facing an "ongoing emergency" like the caller in Davis, arguing that Walker's call was "nothing more than a recording of a drunk[en] individual who was using the call to convey to the 911 operator the problems she perceived in her relationship with Appellant." Appellant correctly points out that Walker acknowledged to the 911 dispatcher that she had been drinking earlier in the evening, and that the State had stipulated that Walker was intoxicated when she made her call. Appellant also finds it significant that Walker spoke in a "calm" voice during the recording, and that at least a portion of her communications with the 911 dispatcher consisted of complaints about her relationship with Appellant. Appellant also finds it significant that at one point in the conversation, Walker laughed, which he believes renders any claim that she was facing an ongoing emergency an "absurdity."
We conclude, however, that applying the "objective" test mandated by Davis, any reasonable listener would have concluded that Walker was facing an ongoing emergency when she made her statements to the 911 dispatcher. Walker's first words to the 911 dispatcher were that she "needed some help," a phrase that she repeated throughout the call. Further, at various times in the conversation, Walker advised the 911 dispatcher that she was currently a passenger in a vehicle being driven by a driver who was "very intoxicated," that the driver was "all over the road," that he "should not be driving," that he was "acting crazy," and that he was driving in a "scary" manner. Her description of the situation indicated not only that she was in danger as a passenger in a car with an intoxicated driver, but also that the public in general was also in danger from an intoxicated driver operating a vehicle on a public roadway. See generally Webb v. State, 739 S.W.2d 802, 809 (Tex.Crim.App. 1987) (recognizing that a strong public interest exists in reducing the "carnage caused by drunk drivers") (quoting South Dakota v. Neville, 459 U.S. 553 (1983)).
We recognize that as the eleven-minute conversation progressed, Walker made various unsolicited statements to the 911 dispatcher about Appellant's past conduct, including that Appellant had previously been "mean" to her, had committed "mental violence" toward her, and had acted in a "crazy" manner. Walker further expressed her belief that Appellant needed some kind of "help" and needed "a psychiatrist." We fail to see, however, how Walker's statements about her past relationship made her situation any less of an emergency, or altered the primary purpose of her call, which was to report an ongoing emergency and to summon police assistance.
We note that by explaining the nature of her relationship with Appellant and his past "mean" and "crazy" conduct, Walker was indirectly conveying her fear of what might happen in the current situation, making that information relevant to the 911 dispatcher's ability to adequately assess the gravity of the situation.
We also disagree with Appellant's contention that because Walker was speaking in what he describes as a "very calm" manner during the 911 call, we should conclude that she was not in an emergency situation. While the recording reflects that Walker was speaking quietly to the 911 dispatcher, we note that callers may purposely speak in hushed tones to 911 dispatchers when they are seeking to avoid detection by the alleged perpetrator in a dangerous situation, with the classic example being a victim calling 911 during a home invasion. We find this situation to be no different. Walker made her 911 call while sitting in close proximity to Appellant while he was erratically operating his car in an intoxicated condition. A reasonable listener could have concluded that she was speaking in a quiet tone so that Appellant would not overhear her conversation and out of fear for her own safety, particularly in light of her belief that Appellant was mentally and emotionally unstable.
We also disagree with Appellant's argument that because Walker had admittedly been drinking earlier in the evening, this would have caused a reasonable listener to believe that Walker was not facing an ongoing emergency during the 911 call. Walker sounded coherent throughout the recording, did not slur her words, and provided cogent and accurate information to the 911 dispatcher, all of which allowed the dispatcher to assess the situation and to send assistance to the location she provided. That she may have been somewhat intoxicated during the call did not diminish the gravity of the danger she faced.
Appellant also finds it significant that during the 911 call, Walker reported that Appellant had "punched out" the windshield of the car, causing it to crack, but that the arresting officer did not see any sign that this had occurred when he arrived on the scene. Appellant argues that because Walker provided this allegedly false information to the 911 dispatcher, this established that she called 911 "not because Appellant was driving recklessly, but because she was angry at Appellant due to their deteriorating relationship." It is unclear from the recording, however, whether Walker was telling the 911 dispatcher that Appellant had punched the windshield on a prior occasion, or whether she meant he had done it while driving on the evening in question. In any event, regardless of the truth or falsity of this information, it in no way altered the fact that the primary purpose of Walker's 911 call was to report her concern about the ongoing emergency she was facing due to Appellant's actions in driving while intoxicated, and her need for police assistance to resolve the emergency.
And finally, we disagree with Appellant's contention that a reasonable listener would not have believed Walker faced a true emergency because she "laughed" at one point during the 911 call. While the recording did reveal that Walker briefly laughed while describing her attempts to stop Appellant from driving in an intoxicated state earlier that night, a reasonable listener could have interpreted this as a "nervous" or an incredulous laugh, as Walker clearly believed that Appellant should not have been driving that night. In any event, that Walker laughed on a single occasion during an eleven-minute conversation does not negate the dangerous nature of the situation Walker was reporting during her 911 call.
We therefore conclude that, despite the extraneous information that Walker provided during the 911 call and her demeanor during the call, a reasonable listener would have concluded that the primary purpose of her call was to report a true ongoing emergency and to obtain police assistance. Contrary to Appellant's argument, there is nothing in the recording to suggest that Walker's intent was instead to make a formal statement for use in a future prosecution against Appellant. See, e.g., Dixon v. State, 244 S.W.3d 472, 484-85 (Tex.App. - Houston [14th Dist.] 2007, pet. ref'd) (caller who reported that her boyfriend had just assaulted her was seeking immediate police assistance, not making a formal statement for later use); Neal v. State, 186 S.W.3d 690, 694 (Tex.App. - Dallas 2006, no pet.) (because statements made to 911 dispatcher during a crime in progress were made with an intent to receive police assistance, the statements were "not made under circumstances that would lead an objective witness to reasonably believe the statements would be available for use at a later trial").
The Nature of the 911 Dispatcher's Questions
We also disagree with Appellant's contention that the questions posed by the 911 dispatcher during the 911 call went beyond what was necessary to resolve the ongoing emergency that Walker was facing. A review of the recording indicates that the dispatcher's initial questions to Walker were primarily directed at ascertaining the nature of Walker's situation and whether she was in any current danger. In particular, we note that Walker initially advised the 911 dispatcher that she needed "some help," but then hesitated and became quiet. The 911 dispatcher then asked Walker what was "happening," to which Walker responded: "He's driving...he's right here." When Walker once again became quiet, the dispatcher asked Walker if she was in a car with someone who "should not be driving," to which Walker responded in the affirmative. After ascertaining Walker's location, and the make of the vehicle she was in, the 911 dispatcher then asked Walker if the driver of the vehicle was intoxicated, to which Walker once again responded in the affirmative.
The dispatcher asked Walker to stay on the line so that she could keep him updated on their location so that he could send law enforcement to assist her. After advising Walker that law enforcement was on its way, the dispatcher asked Appellant a brief series of questions to determine her safety, as well as the safety of the officers who had been dispatched to the scene, such as whether Appellant had any weapons and whether Appellant had hit her, or otherwise been physically violent toward her.
While Walker volunteered certain facts about her past relationship with Appellant and expressed her belief that Appellant might be mentally unstable, those statements were neither elicited by the 911 dispatcher nor made in response to any of the dispatcher's questions. Despite Walker's propensity to discuss her relationship with Appellant during the call, the 911 dispatcher asked no follow-up questions about Walker's relationship with Appellant or about Appellant's past conduct.
In fact, the questions asked by the 911 dispatcher were virtually identical to the questions asked by the 911 dispatcher in Davis, and were exclusively directed at determining the nature of Walker's ongoing emergency and at ascertaining her location and other information necessary to enable police to resolve the emergency, and to ultimately ensure her safety as well as that of the general public. There is nothing in the record to suggest that the 911 dispatcher had any intent to elicit information from Walker to be used in a future prosecution. See, e.g., Eckland v. State, No. 02-10-00210-CR, 2011 WL 5984704, at *1 (Tex.App. - Fort Worth Dec. 1, 2011, pet. ref'd) (mem. op., not designated for publication) (where caller contacted 911 to report an intoxicated driver on the road, the questions and comments made by the police dispatcher were primarily directed at getting police to the driver's location, and there was nothing in the recording to indicate that they were made for the purpose of establishing or proving past events potentially relevant to the driver's prosecution); see also Reyes v. State, 314 S.W.3d 74, 78-79 (Tex.App.—San Antonio 2010, no pet.) (911 dispatcher's questions were designed to evaluate the situation at the time the call was received in order to determine if an emergency existed that required a response from law enforcement, rather than to memorialize information for later use in a criminal prosecution).
The Setting in which the 911 Call Took Place
We also reject Appellant's argument that merely because Walker did not respond in a "frantic" manner to the 911 dispatcher's questions, as the caller did in the Davis case, serves as a basis to find her statements were testimonial. Although in Davis, the Court mentioned that the 911 caller provided "frantic answers" to the 911 dispatcher's questions while she was in the midst of a domestic disturbance, we do not believe that the Court intended to hold that 911 recordings are admissible at trial only if the caller speaks in a "frantic" or excited manner. Instead, the Davis Court made it clear that it was less concerned with how the caller answered the 911 dispatcher's questions than with the setting in which the questions were asked and answered. In particular, the Court contrasted the "formal" and calm setting of the police interrogation that took place in Crawford at a police station hours after the crime was committed, with the setting in which a victim is reporting an ongoing crime to a 911 dispatcher, noting that such a setting is by its very nature an "environment that [is] not tranquil, or even ... safe." Id. at 827, 126 S.Ct. at 2276-77.
When Walker was reporting her concerns to the 911 dispatcher about Appellant's unsafe driving, she was effectively a passenger trapped in a moving vehicle being driven by an intoxicated driver, which, by any objective standards, rendered it an "unsafe" or "less than tranquil environment." That Walker may have, out of fear for her own safety, spoken in a quiet or hushed tone, rather than in a frantic manner, in no way negates that she was in an unsafe environment. More importantly, her tone of voice does not transform what was a typical 911 call for help into a formal police interrogation. Instead, we see nothing in the record to distinguish Walker's call from the typical 911 call, and nothing that would cause us to conclude that her call was analogous to the police interrogation that took place in Crawford. See, e.g., Ruth v. State, 167 S.W.3d 560, 569 (Tex.App. - Houston [14th Dist.] 2005, pet. ref'd) (caller's statements to 911 dispatcher were not testimonial in nature, where caller was reporting a crime in progress at her home for the purpose of summoning police, and nothing in the record suggested that the call deviated from the typical, nontestimonial 911 call); see also Cook v. State, 199 S.W.3d 495, 496-98 (Tex.App. - Houston [1st Dist.] 2006, no pet.) (where witness placed a 911 call to inform police of a potential crime in progress, the setting was "informal" and therefore the 911 recording was admissible over the defendant's Crawford objection).
Accordingly, we conclude that Appellant's statements were non-testimonial in nature, and that the trial court properly admitted the 911 recording into evidence.
In light of our determination that Walker's statements to the 911 dispatcher were not testimonial, we need not address whether the State established that Walker was "unavailable" to testify at trial or whether Appellant had a prior opportunity to cross-examine her prior to trial. See, e.g., Crawford, 541 U.S. at 59, 124 S.Ct. at 1368-69 (declarant's testimonial out-of-court statements are only admissible at trial if a declarant is shown to be unavailable for trial and the defendant had a prior opportunity to cross-examine the declarant prior to trial); see also Otero-Miranda v. State, 746 S.W.2d 352, 354 (Tex.App. - Amarillo 1988, pet. ref'd) (the mere inability to subpoena a witness does not absolve party from making other good faith efforts to secure attendance of the witness). Non-testimonial statements are admissible at trial, regardless of the declarant's unavailability to attend trial or whether the defendant had a prior opportunity to cross-examine the declarant prior to trial. See generally Lee v. State, 418 S.W.3d 892, 896 (Tex.App. - Houston [14th Dist.] 2013, pet. ref'd) (as declarant was not shown to be unavailable for trial, declarant's out-of-court statements could only be admissible if they were not testimonial in nature).
Appellant's Hearsay Argument
Appellant also argues Walker's statements were inadmissible because they do not fit within any exception to the hearsay rule, including the exception for "excited utterances," given the calm manner in which she made her statements. We conclude Appellant did not preserve this issue for appeal because his objection to the admission of the 911 recording at trial was based solely on whether its admission violated his Sixth Amendment right to confront witnesses, and he failed to lodge any hearsay objection to the admission of the 911 recording.
We note that while the parties were discussing the admission of the recording at a pretrial hearing, Appellant's attorney briefly expressed his opinion that the 911 recording did not fit within the "excited utterance" exception to the hearsay rule. He did so, however, only in response to a statement made by the prosecutor, and he did not expressly make any objection on hearsay grounds, and did not seek a ruling from the trial court on that basis. --------
A trial objection preserves only the specific ground raised in the trial court. See TEX.R.APP.P. 33.1(a)(1)(A); TEX.R.EVID. 103(a)(1). When an appellant objects to the admission of evidence on only one ground, he forfeits the right to raise an objection on a different ground on appeal. Lugo v. State, 299 S.W.3d 445, 449-50 (Tex.App. - Fort Worth 2009, pet. ref'd); see also Sorto v. State, 173 S.W.3d 469, 476 (Tex.Crim.App. 2005) (when an issue raised on appeal does not comport with the objection made at trial, nothing is preserved for review); Bell v. State, 938 S.W.2d 35, 54 (Tex.Crim.App. 1996) (if a complaint raised on appeal does not comport with the objection made at trial, it is waived); Lozano v. State, 359 S.W.3d 790, 823-24 (Tex.App. - Fort Worth 2012, pet. ref'd) (the point of error on appeal must comport with the objection made at trial, or the appellant loses his right to raise the issue on appeal).
An objection to the admission of evidence on hearsay grounds and an objection on confrontation grounds are not synonymous, and therefore raising one objection does not preserve the other. See Holland v. State, 802 S.W.2d 696, 700 (Tex.Crim.App. 1991) (hearsay objections and confrontation clause objections are "neither synonymous nor necessarily coextensive"); Campos v. State, 186 S.W.3d 93, 98 (Tex.App. - Houston [1st Dist.] 2005, no pet.) (recognizing that because the two objections are not synonymous, raising a hearsay objection alone did not preserve appellant's right to raise confrontation complaint on appeal); see also Reyna v. State, 168 S.W.3d 173, 179-80 (Tex.Crim.App. 2005) (failure to argue the Confrontation Clause as a ground for admitting evidence in response to a hearsay objection did not give the trial judge an opportunity to rule on this theory of admission, and, therefore, resulted in forfeiture of the issue); see also Robinson v. State, 310 S.W.3d 574, 577-78 (Tex.App. - Fort Worth 2010, no pet.).
As such, we conclude that Appellant's failure to make a hearsay objection at trial leaves nothing for our review. We therefore decline to consider this issue on appeal. See Wilson v. State, 311 S.W.3d 452, 473 (Tex.Crim.App. 2010) (opin. on reh'g) (a reviewing court should not address the merits of an issue that has not been preserved for appeal).
CONCLUSION
We overrule Appellant's sole issue on appeal and affirm the trial court's judgment.
STEVEN L. HUGHES, Justice March 9, 2016 Before McClure, C.J., Rodriguez, and Hughes, JJ. (Do Not Publish)