Tammy Rose Wiggins v. State ( 2004 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00216-CR

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TAMMY ROSE WIGGINS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 115th Judicial District Court

Marion County, Texas

Trial Court No. F13,266

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Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Carter

O P I N I O N

            Tammy Rose Wiggins was convicted of capital murder and sentenced to life in prison. Her only complaint on appeal is that the admission of hearsay statements made by her co-conspirator, Glen Bethany, to testifying witnesses Mark Fish, Teresa Miller, and Wendy Bunn Troquille, violated her Confrontation Clause rights as articulated in Crawford v. Washington, 124 S. Ct. 1354 (2004). Finding the co-conspirator statements on which she bases her appeal nontestimonial, we overrule Wiggins' three points of error and affirm the trial court's judgment.

            Wiggins does not attack the sufficiency of evidence at trial, so a detailed recitation of the facts of this case is not necessary. An in-depth summary of the evidence of this crime may be found in this Court's opinion in Bethany v. State, 06-03-00185-CR.

            In brief, the evidence adduced at trial showed that Tammy was involved in an extra-marital affair with Bethany. Tammy and Bethany conspired to kill Tammy's husband, Randy Wiggins. Randy had filed for divorce from Tammy and intended to seek custody of their young child. In exchange for his help in the murder, Bethany was to receive from Tammy the title to Randy's Lincoln automobile. Randy and Tammy left a bar near the Louisiana/Arkansas/Texas state lines, and pulled off the road near an oil well in Cass County, Texas. Bethany waited there until Tammy and Randy arrived, then Bethany hit Randy at least twice in the head with a hammer, and cut Randy's throat. Bethany put Randy's body in a large toolbox in a pickup truck Bethany had stolen; Bethany dumped the body on a county road in Marion County, then took the truck to Frierson, Louisiana, and set it ablaze.

Co-Conspirator Statements

            The evidence on which Tammy bases her Crawford complaints is as follows:

            Teresa Miller was the live-in girlfriend of Mark Fish at the time of Randy's murder. She testified that Bethany and Tammy stayed with Miller and Fish. Miller heard Bethany and Tammy, in Miller's kitchen, talking about Bethany getting the title to Randy's car in exchange for killing Randy. Miller, while in the car with Tammy and Bethany, heard Tammy ask Bethany to kill Randy so Tammy and Bethany "could be together." Miller did not hear Bethany respond to Tammy's statement, but did hear Tammy say that, if Bethany did not kill Randy, Tammy would do it herself. After Tammy got out of the car, Bethany told Fish and Miller he would not kill "any man for a woman."

            Miller also said that Bethany told her specifics about the murder and that he asked her to take him to recover the hammer used in the killing. After seeing coverage of Randy's death on the local news, Bethany asked if Miller knew who the victim was. After Miller answered that she did not know him, Bethany told her the victim was Tammy's husband. He described to Miller that Tammy and Randy left a bar and came to a clearing in the woods, where Bethany waited. Bethany said he struck Randy in the head with a ball peen hammer, stabbed him, cut his throat, put his body in the toolbox, drove seventy-five miles away, and dumped the body. He took the title to the Lincoln from Randy's wallet. Bethany then put his bloody clothes in the front of the truck, took the truck to another location, and burned it. The description Bethany gave of the murder had not been mentioned on the news broadcasts. After telling all this to Miller, he asked her to go with him to look for the hammer.

            Fish testified Bethany described the murder, using hand gestures to indicate cutting motions to the throat. Bethany said the song, "Three Times a Lady" was his code for the murder, because he had cut Randy's throat three times. Bethany asked Fish to help provide an alibi for Bethany and Tammy. Fish testified he heard Bethany and Tammy talking in the kitchen; Bethany later told Fish he had been "coaching" Tammy in case she was questioned by police detectives.

            Troquille testified that Bethany told her specifics about the murder event and that he asked her to take him to recover the hammer used in the killing. Bethany told her the murder had been planned and Tammy had asked him to participate. According to Troquille, Bethany said he waited at a prearranged site, where Tammy arrived with Randy. Bethany said he struck Randy in the head with a ball peen hammer, and the hammer flew out of his grip after the second blow. Bethany told Troquille that "he was not going down for this crime alone" and afterward sent Tammy back to the bar to establish an alibi. Bethany did not ask for Troquille's help in formulating an alibi, but said that, if she would take him back to the murder scene and look for the hammer, she "would never have to work another day in [her] life." Troquille said that the details Bethany told her had not been mentioned on television news reports and that he had thrown in a lake the knife used in the crime.

Nontestimonial Statements Not Barred by Crawford v. Washington

            Wiggins's sole complaint is that the statements made by Bethany to Fish, Miller, and Troquille are barred by Crawford. We disagree. The United States Supreme Court in Crawford held that the Confrontation Clause in the Sixth Amendment to the United States Constitution barred from admission into evidence testimonial statements of a witness who did not appear for trial unless the witness was unavailable to testify and the defendant had had a prior opportunity for cross-examination. Crawford, 124 S.Ct. at 1365. Crawford concerns testimonial statements. Co-conspirator statements made in the furtherance of a conspiracy are nontestimonial. Crawford, 124 S.Ct. at 1367 ("[m]ost of the hearsay exceptions covered statements that by their nature were not testimonial—for example, business records or statements in furtherance of a conspiracy"); United States v. Reyes, 362 F.3d 536, 541 (8th Cir.), cert. denied, Burton v. United States, 124 S. Ct. 2926 (2004).

             Appellant is correct that Crawford "leave[s] for another day . . . a comprehensive definition of 'testimonial.'" Crawford, 124 S.Ct. at 1374. However, the Court did note that "the term covers . . . at a minimum . . . prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and . . . police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed." Id.

            The Second Circuit Court recently construed Crawford as it pertains to co-conspirator statements. "[S]tatements cited by the Court [in Crawford] as testimonial share certain characteristics; all involve a declarant's knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings." United States v. Saget, 377 F.3d 223, 228 (2d Cir. 2004). In Saget, a co-conspirator disclosed inculpatory statements to a confidential informant. Noting Crawford's specific caveat that it only pertains to testimonial statements, the Second Circuit Court pointed out that the co-conspirator in Saget made statements to one he thought was an ally or friend, and there was no evidence the co-conspirator was trying to shift blame away from himself. In this case, Bethany's statements are clearly nontestimonial. As in Saget, they were not made in a setting where it might reasonably be expected the statements would be used in judicial proceedings.

            Even though we have found these statements to be nontestimonial, we must still determine the application of the Confrontation Clause concerning nontestimonial statements. The Supreme Court did not specifically resolve this issue, stating "[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law--as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether." Crawford, 124 S.Ct. at 1374. A reasonable interpretation of Crawford would exempt all nontestimonial statements from any Confrontation Clause scrutiny. Several courts have held that nontestimonial statements are still governed by Ohio v. Roberts, 448 U.S. 56 (1980). See Saget, 377 F.3d 223; Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2004); People v. Cage, 120 Cal. App. 4th 770, 782 (Cal. Ct. App. 2004); State v. Manuel, 685 N.W.2d 525 (Wis. Ct. App. 2004) ("we proceed, in an abundance of caution, to analyze Manuel's confrontation clause claim under the Roberts analysis").

            In the context of a Confrontation Clause analysis, Roberts authorized the introduction of a hearsay statement if it bore sufficient "indicia of reliability." Roberts, 448 U.S. at 66. A hearsay statement is per se reliable under the Confrontation Clause if it falls within a "firmly rooted" exception to the hearsay rule. White v. Illinois, 502 U.S. 346, 356 (1992). Even applying the Roberts test, we hold these nontestimonial statements were admissible.

            Here, Bethany made statements that were significantly self-inculpatory. The Texas Court of Criminal Appeals has found statements against one's penal interest to be "extremely reliable." Dewberry v. State, 4 S.W.3d 735, 753 (Tex. Crim. App. 1999). Further, co-conspirator statements are recognized as a firmly rooted hearsay exception. Bourjaily v. United States, 483 U.S. 171, 183 (1987); Bailey v. State, 804 S.W.2d 226, 231 (Tex. App.—Amarillo 1991, no pet.).

            Since co-conspirator statements are not testimonial, the Confrontation Clause does not give the defendant the right to cross-examine a person who does not testify at trial and whose statements are introduced under the co-conspirator hearsay exclusion. Reyes, 362 F.3d at 540–41, citing White, 502 U.S. at 356.

            Finally, the two cases Wiggins cites in support of her argument that Crawford and the Confrontation Clause bar the testimony of Fish, Troquille, and Miller are inapposite. Brooks v. State, 132 S.W.3d 702 (Tex. App.—Dallas 2004, no pet. h.); Hale v. State, 139 S.W.3d 418 (Tex. App.—Fort Worth 2004, no pets.). Both involve statements from a codefendant (Brooks) or accomplice (Hale) which were written and given to police during custodial interrogations. Clearly, those statements were testimonial, as contemplated by Crawford, and not comparable to the statements in the instant case.

            Wiggins' three points of error are overruled. We affirm the judgment.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          October 27, 2004

Date Decided:             November 18, 2004

Publish

'Times New Roman', serif"> committed those grounds, and therefore, will deny the request of the State to terminate the parent-child relationship, although [A.B.] will remain in the conservatorship of the Department in anticipation that he will remain and complete the program in Pegasus. I do not find that Ms. Palmer at this time is able to take [A.B.] back or to provide a home for him, and it will be necessary for him to remain in their conservatorship until such time as she does.

As to the other four children, the Department will remain as the Managing Conservator of those children.

            The trial court's oral pronouncement meets the requirements of a final judgment in accordance with Section 263.201(d) of the Texas Family Code. Tex. Fam. Code Ann. § 263.401(d). First, we note it expressly confirms the State's allegations and specifically finds that termination of Palmer's parental rights would be in the best interests of the children. Second, the pronouncement declares that TDPRS "will remain" the conservator of the children. Therefore, the trial court's oral pronouncement constituted rendition of a final judgment on May 12, 2003, before the first anniversary of the date the court first named TDHS temporary managing conservator for the children. Dismissal under Section 263.401(a), therefore, was not required, and the trial court's denial of the motion to dismiss on those grounds was not error.

Apply a Higher Standard of Review?

            A court may order involuntary termination only if the court finds that: (1) a parent has committed a predicate act or omission harmful to the child, and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon 2002). Any complaint that the evidence is legally or factually insufficient to support the findings necessary for termination is analyzed by a heightened standard of appellate review. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

            Palmer contends federal constitutional due process principles require us to review de novo the trial court's decision to terminate parental rights. We decline this invitation to depart from established law setting forth the heightened standards of review applicable to termination of parental rights. In reviewing the legal sufficiency of the evidence, we view all the evidence in a light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. Tex. Fam. Code Ann. § 101.007 (Vernon 2002); J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25. If, in light of the entire record, the disputed evidence that could not reasonably have been credited in favor of the finding is so significant that a trier of fact could not reasonably have formed a firm belief or conviction favoring the ruling, then the evidence is factually insufficient. Id. The court reasoned this provides a standard that "focuses on whether a reasonable jury could form a firm conviction or belief [yet] retains the deference an appellate court must have for the factfinder's role." C.H., 89 S.W.3d at 26. We will apply these established standards to the facts of Palmer's case as we address her remaining points of error challenging the sufficiency of the evidence to sustain several of the trial court's findings.

Did Conditions or Surroundings Endanger the Children?

            Palmer contends the evidence is insufficient to establish by clear and convincing evidence that she "knowingly placed or knowingly allowed children to remain in conditions or surroundings which endanger the physical or emotional well-being of the child." Tex. Fam. Code Ann. § 161.001(1)(D). Under this section, we look to see if the environment itself poses a danger to the child's physical or emotional well-being. In re S.H.A., 728 S.W.2d 73, 84 (Tex. App.—Dallas 1987, writ ref'd n.r.e.).

            It is beyond question that sexual abuse is conduct that endangers a child's physical or emotional well-being. See In re R.G., 61 S.W.3d 661, 667 (Tex. App.—Waco 2001, no pet.); In re King, 15 S.W.3d 272, 276 (Tex. App.—Texarkana 2000, pet. denied). Parental knowledge that an actual offense has occurred is not necessary; it is sufficient that the parent was aware of the potential for danger and disregarded that risk. R.G., 61 S.W.3d at 667–68; see In re Tidwell, 35 S.W.3d 115, 118 (Tex. App.—Texarkana 2000, no pet.).

            The record reveals ample evidence that Palmer, at a minimum, knew of a risk for sexual abuse and disregarded that risk. Although Palmer's account of what happened varied over time, she admits believing "something" happened. By not following the required steps and using the State's recommendations for dealing with the psychological impact of the behavior, Palmer indicates she began to deny the allegations that A.B. and C.R. sexually abused their younger siblings. While she did take the initiative to report the matter and have A.B. placed in detention, she then ceased taking any steps toward ensuring the emotional well-being of the children, leaving unresolved any psychological issues concerning sexual abuse. Palmer's denial and her attendant lack of support could contribute to an environment in which the children could continue to be exposed to sexual abuse and in which they could be hesitant to report the conduct. See R.G., 61 S.W.3d at 671. Additionally, the record contains evidence that Palmer did not keep C.R. away from the younger children. Such a case would most certainly make for an environment which poses a danger to the younger children's well-being.

            The record demonstrates endangering conditions other than those relating to sexual abuse. Kidd testified that the Palmer house was "extremely messy," that there was no electricity in the house, that the kitchen was "very dirty," and that there was "food laying [sic] around." Palmer's history of drug and alcohol abuse lends itself to an unstable home environment and weighs in favor of termination of her parental rights. See In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied). The record also reveals that on several occasions Palmer left the children in the care of Edward Jarrells, who had, to her knowledge, recent convictions for possessing a controlled substance and making terroristic threats.

            Based on the foregoing evidence, we conclude the evidence was sufficiently clear and convincing to support the trial court's finding. Looking at the evidence in a light most favorable to the finding of the trial court, we conclude a reasonable trier of fact could have formed a firm conviction that Palmer knowingly placed or allowed her children to remain in conditions or surroundings that endangered their physical or emotional well-being. Also, the disputed evidence on the matter is not so significant that the trial court could not have formed a firm conviction or belief that its finding was true. We overrule Palmer's first and second points of error.

Did Conduct Endanger the Children?

            Palmer also challenges the sufficiency of the evidence to support the trial court's finding that she engaged in conduct, or knowingly placed the children with persons who engaged in conduct, which endangered the physical or emotional well-being of the children. Tex. Fam. Code Ann. § 161.001(E); Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 534 (Tex. 1987).

            Here, our inquiry, unlike that under Section 161.001(1)(D), focuses on conduct of either the parent or the persons with whom the parent has placed the children. See In re P.S., 766 S.W.2d 833, 836 (Tex. App.—Houston [1st Dist.] 1989, no writ). Subsection (D) permits termination based on a single act or omission, while subsection (E) requires a "course of conduct." R.G., 61 S.W.3d at 667. While the term "endanger" means more than a threat of metaphysical injury or the possible ill effects of a less than ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d at 533. In our review, we look not only at evidence regarding the parent's active conduct, but also evidence showing the parent's omissions or failures to act. P.S., 766 S.W.2d at 835.

            Palmer's failure to participate in counseling shows her unwillingness or inability to ensure the emotional well-being of the children following their experience with sexual abuse. This is but one instance of conduct in her pattern of behavior which endangered the well-being of her children. Palmer's failure to follow through to seek help after the A.B. incident and her history with crack cocaine and alcohol represent conduct that subjects the children to a life of uncertainty and instability, thereby endangering their physical and emotional well-being. See S.D., 980 S.W.2d at 763. The evidence is legally and factually sufficient to support the finding that Palmer engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children. We overrule Palmer's third and fourth points of error.

Is Termination in the Children's Best Interests?

            Palmer argues that the evidence was legally and factually insufficient to support the trial court's conclusion that termination of the parent-child relationship is in the best interests of the children. The State, in addition to proving a predicate act or omission harmful to the child, must also prove by clear and convincing evidence that termination is in the child's best interest. C.H., 89 S.W.3d at 23.

            A number of factors have been considered by the courts in ascertaining the best interest of the child. Included among these are the following: (1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals to promote the best interest of the child, (6) the plans for the child by these individuals or by the agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).

            The record contains no evidence that the children desire to live with their mother. To the contrary, C.R. appeared detached and showed no interest in even talking to Palmer. In an interview at Longview Youth Shelter, C.R. even expressed to his psychologist his desire to stay at the shelter. C.R. has shown significant improvement in the more structured environment of a residential treatment center. There is, however, evidence that the three youngest children are bonded to their mother and have expressed affection for her.

            The record also shows that Palmer has been unable to provide for the physical needs of the children as demonstrated by the "extremely messy" house, the "very dirty" kitchen, the "food laying [sic] around," and lack of electricity. Palmer's denial that sexual abuse occurred in her home and her unexplained failure to undergo family counseling demonstrates a failure to care for the emotional needs of the youngest children. Further, the State maintains that there are several good programs for the children and that the children are good candidates for adoption into a stable home.

            Palmer's failure to protect the emotional well-being of the children following the allegations of sexual abuse, her failure to maintain a healthy, safe, and stable living environment, and her history of drug and alcohol abuse indicate her relationship with her children is not good.

            Viewing the evidence in a light most favorable to the finding, we conclude there was sufficient evidence to enable the trial court to form a firm belief that termination of Palmer's parental rights was in the best interests of the four youngest children. While there is some evidence that could be said to dispute that finding, that evidence is not so significant that the trial court could not have maintained a firm belief favoring the ruling. The record contains clear and convincing evidence of Holley factors supporting the conclusion that termination of Palmer's parental rights is in the best interests of the children. We overrule Palmer's contentions to the contrary.

Conclusion

            Since the trial court rendered judgment within the time frame allowed by Section 263.401(a), the trial court properly denied Palmer's motion to dismiss the cause. Rejecting Palmer's argument that we should employ a de novo standard of review and adhering to the established standards applicable to cases involving termination of parental rights, we hold clear and convincing evidence supports the trial court's findings that Palmer allowed the children to remain in conditions which endangered their physical and emotional well-being, that Palmer engaged in conduct, and placed the children with persons who engaged in conduct, endangering the well-being of the children, and that termination of Palmer's parental rights as to the four youngest children is in their best interests.

            Accordingly, we affirm the trial court's judgment terminating Palmer's parental rights to these four children.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:         October 20, 2003

Date Decided:             December 31, 2003