Dennis Wayne Pritchard v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-137-CR
DENNIS WAYNE PRITCHARD APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
------------
MEMORANDUM OPINION 1
------------
I. INTRODUCTION
Appellant Dennis Wayne Pritchard appeals his convictions for aggravated
robbery and robbery. In three points, Pritchard argues that the trial court erred
by admitting certain statements at trial in violation of the Confrontation Clause
of the Sixth Amendment. We will affirm.
1
… See Tex. R. App. P. 47.4.
II. B ACKGROUND
Pam Marten and her husband Harry Marten were at home one night when
a man rang their doorbell. When Mrs. Marten answered the door, the man told
her that his name was Dennis and asked to see Mr. Marten. He said to tell Mr.
Marten that Kerri had sent him. Mr. Marten, who was eighty-one years of age
and partially paralyzed, was in the bedroom. Mrs. Marten took the man to the
bedroom, and the man told the Martens that he wanted to be compensated
because Mr. Marten had been “using” his wife Kerri. Mrs. Marten went to
another room to call the police; the man followed her, threatened her with a toy
gun, and repeatedly hit her in the face and head with his fist. In the meantime,
Mr. Marten called 911 from the bedroom. The man returned to the bedroom,
and Mrs. Marten ran to her neighbor’s house. Her neighbor also called 911.
Mrs. Marten later told the police that the man took her purse and her husband’s
wallet.
Mr. Marten told a detective with the police department that he knew a
woman named Kerri who worked at a car wash and that he gave her money
occasionally. The detective located Kerri Ysasi, who said that the person the
detective described as the suspect reminded her of someone known as
“Gunner.” The detective determined that the man known as Gunner was
Pritchard and compiled a photo lineup with Pritchard and five other individuals.
2
Mrs. Marten identified Pritchard as the man who robbed her and her husband;
Mr. Marten was unable to identify the robber.
The State tried Pritchard on one count of aggravated robbery (of Mr.
Marten) and one count of robbery (of Mrs. Marten). Prior to Pritchard’s trial,
Mr. Marten died of causes unrelated to the alleged aggravated robbery. The
jury found Pritchard guilty of both counts, and the trial court sentenced him to
confinement for forty-five years on each count, to run concurrently. This
appeal followed.
III. V ICTIM ’S O UT-OF-C OURT S TATEMENT
In his first and third points, Pritchard contends that the trial court erred
by admitting at both the guilt-innocence and the punishment phases of trial Mr.
Marten’s out-of-court statements made to police. See U.S. Const. amend. VI.
Specifically, Pritchard contends that these statements were testimonial in
nature and that, consequently, the admission of such statements violated the
Confrontation Clause of the Sixth Amendment.
Officer Betty King, an officer who responded to Mr. Marten’s 911 call,
testified for the State at trial. 2 She explained that she arrived at the Marten
2
… Officer King’s testimony was also admitted in the punishment phase
when, pursuant to the State’s request, the court stated, “Subject to the
objections and the Court’s rulings, the evidence [admitted at the guilt/innocence
phase] will be deemed admitted.”
3
residence within three or four minutes after she received the dispatch and found
Mr. Marten bleeding from his forehead and eyebrow, very disoriented, and
calling out for his wife. Officer King testified that Mr. Marten “was horrified.
He was very concerned for the safety of his wife.” After making a protective
sweep of the house and finding no one else in the home, she asked him what
had happened and said she needed some information in order to look for his
wife. Officer King said that it was “hard to keep him on track because of his
fear for the safety of his wife.” Mr. Marten explained what had happened,
including that the man took his wallet from his pocket and struck him twice in
the head with an object. He also described the man to the officer.
We review a constitutional legal ruling, such as whether a statement is
testimonial or nontestimonial, de novo. Lilly v. Virginia, 527 U.S. 116, 137,
119 S. Ct. 1887, 1900 (1999); Vinson v. State, 252 S.W.3d 336, 339 (Tex.
Crim. App. 2008); Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App.
2006). The Confrontation Clause of the Sixth Amendment provides: “In all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” U.S. Const. amend. VI. The Confrontation
Clause bars the “admission of testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify and the defendant had had
a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S.
4
36, 53–54, 124 S. Ct. 1354, 1365 (2004). In Davis v. Washington, the
Supreme Court established the following:
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.
547 U.S. 813, 822, 126 S. Ct. 2266, 2273–74 (2006).
In the instant case, in determining whether Mr. Marten’s statements to
Officer King were testimonial, the issue is whether circumstances were present
that would indicate the existence of an ongoing emergency at the time he made
the statements. See Vinson, 252 S.W.3d at 339. We look to the nonexclusive
factors of (1) whether the situation was still in progress; (2) whether the
questions sought to determine what is presently happening as opposed to what
has happened in the past; (3) whether the primary purpose of the interrogation
was to render aid rather than to memorialize a possible crime; (4) whether the
questioning was conducted in a separate room, away from the alleged attacker;
and (5) whether the events were deliberately recounted in a step-by-step
fashion. See id. (citing Davis, 547 U.S. at 822, 126 S. Ct. at 2274–75).
5
A review of these factors establishes that the circumstances surrounding
Mr. Marten’s statements objectively indicate the primary purpose of the
questioning was to enable police to meet an ongoing emergency—locating Mrs.
Marten and the suspect. See Davis, 547 U.S. at 822, 126 S. Ct. at 2273–74.
First, the situation was still in progress when Mr. Marten made the complained-
of statements; Officer King testified that during her questioning, Mr. Marten and
the officers at the house did not know the location of Mrs. Marten or the
suspect. Although the complained-of statements included a description of
events that had already occurred, Mr. Marten was worried for his wife’s safety.
See Womack v. State, No. 05-07-00142-CR, 2008 WL 3917807, at *3 (Tex.
App.—Dallas Aug. 27, 2008, no pet.) (not designated for publication).
Second, the questioning sought to determine what was presently
occurring; Officer King explained that she was concerned with whether the
suspect was armed and that she “wanted to obtain or try to obtain the
description of a suspect so that we could put that information out for other
officers to search the area and just basically obtain information as to what had
taken place.” See Garcia v. State, 212 S.W.3d 877, 884 (Tex. App.—Austin
2006, no pet.) (holding that description of violent acts by suspect during
ongoing kidnapping “enabled law enforcement ‘to know whom they are dealing
6
with in order to assess the situation, the threat to their own safety, and
possible danger to the potential victim’”). 3
Third, the primary purpose of the questioning was to render aid.
Although Officer King agreed on cross-examination that she was asking Mr.
Marten questions to gather information to prepare her report, she also testified
that she wanted the information to give the other officers details of the suspect
and to locate Mrs. Marten. See Dixon v. State, 244 S.W.3d 472, 485 (Tex.
App.—Houston [14th Dist.] 2007, pet. ref’d) (holding that primary purpose of
questions was to determine if individual was physically injured and to assess
the potential for a continuing threat to complainant’s safety or the safety of the
responding officer). As the State correctly points out, Officer King’s testimony
does not suggest that the primary purpose of her questioning was to
memorialize a possible crime, but rather to gather information “to enable police
assistance to meet an ongoing emergency.” Garcia, 212 S.W.3d at 884 (citing
Davis, 547 U.S. at 822, 126 S. Ct. at 2273–74).
3
… Pritchard argues on appeal, “Although the description of the suspect
could arguably be nontestimonial since it was necessary to provide a description
so police could be on the look-out for the man who had committed the crime,
the remainder of his statements were not.” But, Mr. Marten’s statements
regarding what had happened helped police meet an ongoing emergency,
namely, a robbery and possibly a kidnapping by a suspect who was possibly
dangerous. See id.
7
The fourth factor concerns whether the questions were answered in an
environment that was tranquil and safe. See Davis, 547 U.S. at 827, 126 S.
Ct. at 2277; Womack, 2008 WL 3917807, at *3. Here, the suspect was no
longer in the house when Mr. Marten spoke to Officer King, but Mrs. Marten’s
safety had not been confirmed. Finally, nothing in the record suggests that the
events were recounted in a step-by-step manner. Officer King testified that Mr.
Marten remained horrified, disoriented, and concerned for his wife throughout
the brief questioning and that it was hard to keep him on track. Accordingly,
we hold that the statements were nontestimonial in nature and that their
admission did not violate the Confrontation Clause.
Even assuming that Mr. Marten’s statements were testimonial in nature,
any error in the admission of those statements was harmless. Because any
such error is constitutional, we apply rule of appellate procedure 44.2(a), under
which we must reverse unless we determine beyond a reasonable doubt that
the error did not contribute to appellant’s conviction or punishment. Tex. R.
App. P. 44.2(a). In applying a rule 44.2(a) harm analysis to hearsay
erroneously admitted over the defendant’s Confrontation Clause objection, the
court of criminal appeals has instructed us that if the verdict or punishment
would have been the same absent the error, then the error is harmless. Clay
v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007) (reversing appellate
8
court’s conclusion that hearsay erroneously admitted over Confrontation Clause
objection was not harmless under rule 44.2(a) standard). In our assessment of
the likelihood that, absent the trial court’s error, the jury’s verdict as to
appellant’s conviction and punishment would have been the same, we must
consider the entire record. Id. Among the factors—as revealed by the record—
that we must consider are: (1) the importance of the hearsay evidence to the
State’s case; (2) whether the hearsay evidence was cumulative of other
evidence; (3) the presence or absence of other evidence corroborating or
contradicting the hearsay evidence on material points; and (4) the overall
strength of the State’s case. Id.; Scott v. State, 227 S.W.3d 670, 690 (Tex.
Crim. App. 2007). We must also consider any other factor, as revealed by the
record, that may shed light on the probable impact of the trial court’s error on
the minds of average jurors. Clay, 240 S.W.3d at 904.
Here, the complained-of statements proved two elements of the charged
offense—that Pritchard committed theft and that he caused bodily injury to Mr.
Marten, but other evidence presented to the jury also established these
elements. At trial, Mrs. Marten testified that she saw the man return to the
bedroom before she ran out of the house and that, although she did not witness
the man hitting her husband, she heard “a shuffling kind of noise” in the
bedroom. She also testified that when she returned from the hospital that
9
night, Mr. Marten “had a big abrasion to [the] side of his head” and a scraped
face. The jury saw a photograph of Mr. Marten’s injuries. Nothing in the
record suggests that these injuries were not caused by Pritchard. Cf. Mason
v. State, 225 S.W.3d 902, 913 (Tex. App.—Dallas 2007, pet. ref’d) (noting
that complainant’s injuries were consistent with appellant’s statement that he
accidentally hit complainant when he reached over to get the telephone). Mrs.
Marten testified that neither she nor her husband had any visible external
injuries prior to the incident. Additionally, Officer King testified that Mr.
Marten’s forehead and eyebrow were bleeding when she arrived on the scene
and that she saw blood on the bedspread and carpet in the master bedroom.
Regarding the theft element, in addition to Mr. Marten’s statements, Mrs.
Marten testified that Pritchard “took my purse and he took Harry’s wallet.” 4
In light of this evidence, the complained-of statements made by Mr.
Marten were cumulative of and corroborated by evidence properly before the
jury. See Clay, 240 S.W.3d at 904; Scott, 227 S.W.3d at 690. Reviewing the
entire record in a neutral manner and applying the factors as instructed by the
4
… We note that Mrs. Marten’s testimony that Pritchard took her purse
is sufficient to satisfy the theft element regarding both counts. See Ex Parte
Hawkins, 6 S.W.3d 554, 560–61 (Tex. Crim. App. 1999) (permitting multiple
prosecutions for robbery when multiple assaults are committed in the course of
only one theft).
10
court of criminal appeals in Clay, we hold beyond a reasonable doubt that any
error in admitting Officer King’s testimony regarding Mr. Marten’s statements
did not contribute to Pritchard’s conviction or punishment. See Tex. R. App.
P. 44.2(a); Clay, 240 S.W.3d at 904. We overrule Pritchard’s first and third
points.
IV. C ROSS-E XAMINATION OF S TATE ’S W ITNESS
In his second point, Pritchard argues that the trial court erred by refusing
to allow defense counsel to cross-examine Kerri Ysasi regarding a pending
criminal charge against her. The State counters that Pritchard failed to properly
develop the record by perfecting a bill of exception and failed to advise the
court that his cross-examination concerning pending charges was for the limited
purpose of showing bias, prejudice, interest, or motive. We agree.
The constitutional right to confront witnesses, guaranteed by the Sixth
Amendment to the United States Constitution, is violated when appropriate
cross-examination is limited. See Carroll v. State, 916 S.W.2d 494, 497 (Tex.
Crim. App. 1996). Nevertheless, there are several areas where cross
examination may be inappropriate and, in those situations, the trial court has
the discretion to limit cross-examination. Id. at 498 (citing Delaware v. Van
Arsdall, 475 U.S. 673, 682, 106 S. Ct. 1431, 1436–37 (1986)). Exposing a
witness’s motivation to testify for or against the accused or the State is a
11
proper and important purpose of cross-examination, and parties are allowed
great latitude to show “any fact which would or might tend to establish ill
feeling, bias, motive and animus on the part of the witness.” Carpenter v.
State, 979 S.W.2d 633, 634–35 (Tex. Crim. App. 1998).
Evidence of “unadjudicated crimes could be admissible to show a
witness’s bias or interest in the particular case.” Moreno v. State, 22 S.W.3d
482, 486 (Tex. Crim. App. 1999). Specifically, evidence that the witness is
subject to a criminal charge can be used to show bias or interest. Id. But the
proponent of a vein of cross examination must show the relevancy of the
questions. Carpenter, 979 S.W.2d at 635. For the evidence to be admissible,
the proponent must establish some causal connection or logical relationship
between the pending charges and the witness’s “vulnerable relationship” or
potential bias or prejudice for the State, or testimony at trial. Id. at 634. A trial
court may, within its discretion, properly limit the scope of cross-examination
to avoid harassment, prejudice, confusion of the issues, endangering the
witness, and the injection of cumulative or collateral evidence. Lagrone v.
State, 942 S.W.2d 602, 613 (Tex. Crim. App.), cert. denied, 522 U.S. 917
(1997). The trial court’s determination may not be reversed unless the
appellant shows a clear abuse of discretion. Montgomery v. State, 810 S.W.2d
372, 392 (Tex. Crim. App. 1990) (op. on reh’g).
12
Here, during defense counsel’s cross-examination of Ysasi, the following
exchange took place:
[Defense Counsel:] Ms. Ysasi, do you currently have theft
charges pending against you here in Wichita County?
[Ysasi:] I --
[The State:] Objection, Your Honor. It’s improper
impeachment.
The Court: Sustained.
[Defense Counsel:] All right. Ms. Ysasi, back in 2001, you said
you met Harry Marten the one time at the car wash?
Although evidence of a pending charge against Ysasi may be admissible to
show improper motive or bias, Pritchard, as the proponent of the evidence, did
not argue that evidence of the pending charge should be admissible for that
purpose or otherwise establish a causal connection or logical relationship
between the pending charges and Ysasi’s “vulnerable relationship” or potential
bias or prejudice for the State. See Carpenter, 979 S.W.2d at 634; see also
Moreno v. State 587 S.W.2d 405, 410–11 (Tex. Crim. App. 1979) (holding
that no error was shown when appellants did not “urge[] the trial court to allow
them to introduce the indictment [against the State’s witness] to show bias,
prejudice, interest, etc., as now urged on appeal”); Robinson v. State, 681
S.W.2d 288, 289 (Tex. App.—San Antonio 1984, pet. ref’d) (holding that no
13
error was shown when appellant failed to perfect a bill of exceptions and failed
to advise court that his cross-examination concerning prior arrests of witness
was for the purpose of showing bias, prejudice, interest, or motive). Under
controlling case law, Pritchard’s “naked assertions” of bias on appeal are not
sufficient to meet his burden. See Carpenter, 979 S.W.2d at 634 n.4 (“Naked
allegations which do no more than establish the fact that unrelated . . . charges
are pending do not, in and of themselves, show a potential for bias.”).
Consequently, we hold that the trial court did not abuse its discretion by not
allowing defense counsel to cross-examine Ysasi about a pending charge
against her. We overrule Pritchard’s second point.
V. C ONCLUSION
Having overruled Pritchard’s three points, we affirm the trial court’s
judgment.
SUE WALKER
JUSTICE
PANEL: CAYCE, C.J.; GARDNER and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 15, 2009
14