Rickey Cunningham v. the State of Texas ( 2023 )

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00170-CR
RICKEY CUNNINGHAM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 71st District Court
Harrison County, Texas
Trial Court No. 20-0112X
Before Stevens, C.J., van Cleef and Rambin, JJ.
Opinion by Justice van Cleef
OPINION
On June 10, 2022, Rickey Cunningham pled guilty to two counts of sexual assault of a
child and, pursuant to a plea-bargain agreement with the State, was placed on deferred
adjudication community supervision for ten years. The State moved to adjudicate Cunningham’s
guilt for both offenses on the grounds that he violated the terms and conditions of his community
supervision by testing positive for methamphetamine on June 14. After the trial court found the
State’s allegation true, it revoked Cunningham’s community supervision, found him guilty of
two counts of sexual assault of a child, and sentenced him to ten years’ imprisonment on each
count.
On appeal, Cunningham argues (1) that the trial court erred by failing to quash the State’s
motion to adjudicate guilt, (2) that the evidence is insufficient to establish that he violated the
terms and conditions of his deferred adjudication community supervision, and (3) that the trial
court erred by admitting testimony about the contents of Cunningham’s community supervision
file—which was authored by a non-testifying witness—over his objection that the testimony
violated his right to confrontation. We find that Cunningham received fair notice of a violation
of community supervision and that sufficient evidence supports the trial court’s decision to
adjudicate guilt. However, because we find that Cunningham was harmed by a denial of his
right to confront the key witness against him, we reverse the trial court’s judgment and remand
the matter for a new adjudication hearing.
2
I. Cunningham Received Fair Notice of a Violation of Community Supervision
“[W]ritten notice of the claimed violations of [community supervision]” is one of “the
minimum requirements of due process which must be observed in community supervision
revocation hearings.” Tapia v. State, 462 S.W.3d 29, 41 (Tex. Crim. App. 2015) (citing Gagnon
v. Scarpelli, 411 U.S. 778, 786 (1973)). In his first point of error, Cunningham argues that the
State’s notice failed “to comport with due process requirements.” We disagree.
The State filed separate, but identical, motions to adjudicate guilt for each count. Each
motion stated,
Defendant violated the following terms and conditions, thereof, in the following
respect, to-wit:
Condition 10: DO NOT POSSESS OR CONSUME ANY ALCOHOLIC
BEVERAGE; nor possess or consume any controlled substance, including
marijuana, as defined by the Texas Health and Safety Code; to wit: the defendant,
Rickey Lloyd Cunningham[,] Jr[.] tested positive for Methamphetamines on or
about the 14th day of June 2022.
Cunningham moved to quash the State’s motion to adjudicate guilt because “there [was] no
allegation that [Cunningham] possessed or consumed [methamphetamine] while on probation.”
At a hearing, Cunningham argued that simply testing positive for methamphetamine four days
after being placed on community supervision was insufficient and that the State would be
required to show that Cunningham consumed the drug after being placed on community
supervision. After hearing that argument, the trial court denied the motion to quash.
“Before revoking his deferred adjudication community supervision and proceeding to
adjudication, due process required, at a minimum, that [Cunningham] receive written notice that
fully informed him which terms of his community supervision the State was alleging he breached
3
and the conduct allegedly constituting the breach.” Hammack v. State, 466 S.W.3d 302, 306
(Tex. App.—Texarkana 2015, no pet.) (citing Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.—
Texarkana 2003, pet. ref’d)). “Nevertheless, the notice requirements in the revocation context
are not nearly as stringent as those required for an indictment.” Id. at 307 (citing Chacon v.
State, 558 S.W.2d 874, 876 (Tex. Crim. App. 1977)). “All that is required is that the motion to
revoke fully and clearly set forth the bases on which the State seeks revocation so that the
accused and his counsel have notice.” Id. (citing Leyva v. State, 552 S.W.2d 158, 162 (Tex.
Crim. App. 1977)).
Here, we find that the State’s motion to adjudicate guilt was sufficient to inform
Cunningham of the allegation that he violated Condition 10 of the terms and conditions of his
community supervision, which stated: “DO NOT CONSUME OR POSSESS THE
FOLLOWING: alcoholic beverages, unlawful controlled substances, narcotics, dangerous drugs,
marijuana, mood/mind altering drugs.” Cunningham’s brief admits that “[t]he conditions made
clear that Cunningham was obligated to refrain from using illegal drugs during the period of
community supervision.” The State’s motion also alleged that Cunningham violated this
condition by testing positive for methamphetamine. While not the picture of clarity, it is obvious
that the State alleged that Cunningham violated Condition 10 by using methamphetamine after
he was placed on community supervision. Cunningham’s arguments at the hearing on the
motion to quash showed that Cunningham was not surprised by the allegation, “was given fair
notice by the motion to [adjudicate guilt,] and was therefore afforded the real opportunity to
4
prepare a defense without surprise.” Pierce v. State, 113 S.W.3d 431, 442 (Tex. App.—
Texarkana 2003, pet. ref’d). As a result, we overrule Cunningham’s first point of error.
II. Sufficient Evidence Supports the Trial Court’s Decision to Adjudicate Guilt
Next, Cunningham questions the sufficiency of the evidence supporting the trial court’s
decision to adjudicate guilt.
A. Standard of Review
At an adjudication hearing, “[t]he State must prove by a preponderance of the evidence
that a defendant violated the terms [and conditions of community supervision].” Cobb v. State,
851 S.W.2d 871, 873 (Tex. Crim. App. 1993). Proof by a preponderance of evidence as to any
one of the alleged violations of the conditions of community supervision is sufficient to support a
trial court’s decision to revoke community supervision and adjudicate guilt. Smith v. State, 286
S.W.3d 333, 342 (Tex. Crim. App. 2009); see Marsh v. State, 343 S.W.3d 475, 479 (Tex. App.—
Texarkana 2011, pet. ref’d) (citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel
Op.] 1980)).
“The determination to proceed with an adjudication of guilt on the original charge is
reviewable in the same manner as a revocation hearing . . . .” TEX. CODE CRIM. PROC. ANN. art.
42A.108(b). “We review the trial court’s decision to revoke community supervision for an abuse
of discretion.” Davidson v. State, 422 S.W.3d 750, 756 (Tex. App.—Texarkana 2013, pet. ref’d)
(citing Meyer v. State, 366 S.W.3d 728, 729 (Tex. App.—Texarkana 2012, no pet.)). In our
determination, we are “permitted to consider all evidence in the trial-court record, whether
admissible or inadmissible.” Velez v. State, No. 01-13-00337-CR, 2014 WL 4783268, at *2
5
(Tex. App.—Houston [1st Dist.] Sept. 25, 2014, pet. ref’d) (mem. op., not designated for
publication) (quoting Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006)). At the
hearing, “the trial court is the sole trier of the fact[s]” and “determines the credibility of the
witnesses and the weight to be given their testimony.” In re T.R.S., 115 S.W.3d 318, 321 (Tex.
App.—Texarkana 2003, no pet.). A trial court’s decision to revoke community supervision and
to proceed with adjudication is examined “in the light most favorable to the trial court’s
[judgment].” Id.; Davidson, 422 S.W.3d at 756.
B. The Evidence
At the adjudication hearing, Elena Allen, the lead director of the community supervision
department, testified that she supervised Alyssa Marcum, who was Cunningham’s community
supervision officer (CSO). Allen said that Cunningham’s intake was completed by Marcum,
who explained the terms and conditions of community supervision to Cunningham on June 10,
2022. Allen testified that individuals on community supervision are given an opportunity to tell
their CSO if they have taken any controlled substance before being placed on community
supervision. Over a confrontation objection, Allen testified about Marcum’s notes, which
indicated that Cunningham claimed he “would be clean” on a subsequent drug test.
Reading from Marcum’s report, Allen testified that Cunningham’s preliminary urinalysis
testing on June 14 was positive for methamphetamine, and the specimen “[wa]s sent to the
lab[oratory] for confirmation” after Cunningham initially denied using the drug. According to
Allen, Marcum’s notes showed that Cunningham first said that he was just in the company of
people smoking methamphetamine before he was placed on community supervision, but
6
Cunningham later told Marcum that he used the drug on June 9. Allen said that that statement
prompted further questioning from Marcum because Cunningham told her that he would be able
to pass a drug test on June 10. Reading from a laboratory report, Allen testified that
Cunningham “was positive . . . with a quantitative value of 343 nanograms for the
amphetamine[], and methamphetamine[], 422 nanograms.” During cross-examination, Allen
admitted that she could not tell on what date Cunningham used the methamphetamine.
Amanda Culbertson, Cunningham’s expert witness, testified that a person could test
positive for methamphetamine in a urinalysis “for as long as nine days after consuming” and, as
a result, there was “no way to determine” when Cunningham last used methamphetamine based
on the results of the laboratory tests. Culbertson also testified that she considered the
quantitative value of methamphetamine in Cunningham’s urine to be a low level, “slightly above
the -- the cutoffs.”
In his own defense, Cunningham testified that he had a methamphetamine addiction, last
used the drug on June 9, and lied to his CSO on June 10 when he said he would be able to test
negative for drugs.
C. Analysis
Proof of the State’s allegation, by a preponderance of the evidence, was sufficient to
support the trial court’s decision to adjudicate guilt. See Moore v. State, 605 S.W.2d 924, 926
(Tex. Crim. App. [Panel Op.] 1980). Here, the trial court heard evidence that Cunningham told
Marcum that he would be able to pass a drug test on June 10. Although Cunningham said he had
lied to Marcum, the trial court was free to disbelieve his self-serving testimony. Instead, as fact-
7
finder, the trial court could conclude that Cunningham told the truth on June 10, succumbed to
his addiction, and used methamphetamine while on community supervision.1 As a result, we
find the evidence sufficient to support the decision to adjudicate guilt and overrule
Cunningham’s second point of error.
III. Cunningham Was Harmed by a Denial of His Right to Confrontation
When Allen was asked what Marcum did during the June 10 intake, Cunningham’s
counsel lodged an objection, stating “[N]ot having Ms. Marcum here denies us our right to
confront and cross-examine witnesses against us in this case under the federal and state
constitution.” The State responded that Allen, “as supervisor[], ha[d] knowledge of all of the
events that [were] documented in Ms. Marcum’s file.” The trial court overruled Cunningham’s
objection but granted him a running objection to Allen’s testimony. Marcum’s file was not
introduced into evidence. Instead, over the confrontation objection, Allen continued to testify
about the contents of Marcum’s file. On appeal, Cunningham argues that the trial court erred by
allowing Allen’s testimony.
A. Standard of Review
“We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion.” Flowers v. State, 438 S.W.3d 96, 103 (Tex. App.—Texarkana 2014, pet. ref’d)
(citing Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010)). “Abuse of discretion
occurs only if the decision is ‘so clearly wrong as to lie outside the zone within which reasonable
people might disagree.’” Id. (quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App.
1
Because Culbertson testified that she could not determine when Cunningham last used methamphetamine, the trial
court was free to disregard her testimony.
8
2008)). “We may not substitute our own decision for that of the trial court.” Id. (citing Moses v.
State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)). “We will uphold an evidentiary ruling if it
was correct on any theory of law applicable to the case.” Id. (citing De La Paz v. State, 279
S.W.3d 336, 344 (Tex. Crim. App. 2009)).
B. There is a Split of Authority on Whether the Sixth Amendment’s
Confrontation Clause Applies to Adjudication and Revocation Hearings
In his appellate brief, Cunningham argues that the trial court’s ruling to admit Allen’s
testimony “violated [his] Sixth Amendment right to confront witnesses against him.” As both
parties note, there is currently a split of authority on whether the Confrontation Clause applies to
adjudication and revocation hearings. Because this Court has not decided the issue,
Cunningham’s appeal presents a matter of first impression. To inform our decision, we discuss
the history leading to the split decisions among our sister courts.
“The Confrontation Clause of the Sixth Amendment provides that ‘[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him . . . .’” Woodall v. State, 336 S.W.3d 634, 641 (Tex. Crim. App. 2011) (quoting U.S.
CONST. amend. VI). “Consistent with the Confrontation Clause guarantee, a testimonial hearsay
statement may be admitted in evidence against a defendant ‘only where the declarant is
unavailable, and only where the defendant has had a prior opportunity to cross-examine.’”
De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008) (quoting Crawford v.
9
Washington, 541 U.S. 36, 59 (2004)).2 Despite the notion that an accused’s liberty interest is at
issue in adjudication and revocation hearings, the phrase “criminal prosecutions” in the Sixth
Amendment has caused much debate about whether the protections of the Confrontation Clause
and Crawford3 apply during those hearings.
In 1971, the Texas Court of Criminal Appeals determined that “[a] probation revocation
hearing is not an adversarial proceeding, a civil action, or a criminal prosecution[;] instead, it is
administrative in nature, a means of protecting society and rehabilitating lawbreakers.” Hill v.
State, 480 S.W.2d 200, 202–03 (Tex. Crim. App. 1971) (op. on reh’g) (citations omitted). In
1973, the United States Supreme Court wrote that “[p]robation revocation, like parole
revocation, is not a stage of a criminal prosecution.” Gagnon v. Scarpelli, 411 U.S. 778, 782
(1973) (citing Morrissey v. Brewer, 408 U.S. 471 (1972)). Citing to (1) the Confrontation
Clause’s language that it applies to “criminal prosecutions,” (2) the legal principle that
adjudication and revocation hearings are administrative in nature, which was overturned in
Ex parte Doan as discussed below, and (3) the language from Scarpelli and Morrisey, our sister
courts routinely found that the Confrontation Clause and, consequently, Crawford did not apply
in those hearings. See Wisser v. State, 350 S.W.3d 161, 164 (Tex. App.—San Antonio 2011, no
pet.); Norman v. State, No. 13-10-00017-CR, 2011 WL 2732673, at *3 (Tex. App.—Corpus
Christi–Edinburg Jul. 14, 2011, no pet.) (mem. op., not designated for publication); Mauro v.
State, 235 S.W.3d 374 (Tex. App.—Eastland 2007, pet. ref’d); Trevino v. State, 218 S.W.3d 2342
“[T]he Crawford rule reflects the Framers’ preferred mechanism (cross-examination) for ensuring that inaccurate
out-of-court testimonial statements are not used to convict an accused.” Whorton v. Bockting, 549 U.S. 406, 418
(2007).
3
Crawford v. Washington, 541 U.S. 36 (2004).
10
(Tex. App.—Houston [14th Dist.] 2007, no pet.); Smart v. State, 153 S.W.3d 118, 121 (Tex.
App.—Beaumont 2004, pet. ref’d).
The split among our sister courts was created after the Texas Court of Criminal Appeals
(CCA) examined Scarpelli and Morrissey in its 2012 decision in Ex parte Doan, 369 S.W.3d 205(Tex. Crim. App. 2012). In Ex parte Doan, the CCA explained that prior decisions labeling
revocation proceedings as administrative in nature were the “result of confusion about federal
law.” Id. at 208. The CCA noted that Scarpelli’s description of federal revocation hearings bore
little resemblance to the corresponding Texas procedure. In Scarpelli, the United States
Supreme Court noted
that a probation-revocation hearing in an administrative agency is unlike
[a] criminal trial, [in which] the State is represented by a
prosecutor; formal rules of evidence are in force; a defendant
enjoys a number of procedural rights . . . . In short, a criminal trial
under our system is an adversary proceeding with its own unique
characteristics. In a revocation hearing, on the other hand, the
State is represented, not by a prosecutor, but by a parole officer
with the orientation [toward rehabilitation]; formal procedures and
rules of evidence are not employed; and the members of the
hearing body are familiar with the problems and practice of
probation or parole.
Ex parte Doan, 369 S.W.3d at 210 (second and third alterations in original) (quoting Scarpelli,
411 U.S. at 789). In noting the differences in Texas procedure, the CCA wrote,
In Texas, the State is represented by a prosecutor, the defendant does have a right
to counsel, the hearing is before the judge, formal rules of evidence do apply, and
there may be appeal directly to a court of appeals. They are conducted entirely
within the judicial branch. The Rules of Evidence and the exclusionary rule to
bar illegally seized evidence apply fully in a Texas probation revocation hearing.
Indeed, aside from the burden of proof required to prove a community-
supervision violation (preponderance of the evidence, which is lower than the
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burden of proof beyond a reasonable doubt that is required to prove a new
criminal offense), there are few procedural differences between a Texas criminal
trial and a Texas community-supervision revocation proceeding.
Id. (footnotes omitted) (citations omitted). As a result, Ex parte Doan held that “[c]ommunity
supervision revocation proceedings . . . are judicial proceedings, to be governed by the rules
established to govern judicial proceedings.” Id. at 212.
After Ex parte Doan, several appellate courts have reexamined the issue with mixed
results. The Houston 14th District and the Corpus Christi courts reversed course and found that
the Confrontation Clause applied to adjudication and revocation proceedings. Hughes v. State,
651 S.W.3d 461, 468 (Tex. App.—Houston [14th Dist.] 2022, pet. granted) (holding that the
Confrontation Clause does apply to revocation proceedings); Perez v. State, No. 13-14-00300-
CR, 2015 WL 4234236, at *1 n.2 (Tex. App.—Corpus Christi–Edinburg July 9, 2015, no pet.)
(mem. op., not designated for publication) (“[I]f the Rules of Evidence and exclusionary rule
apply to community supervision proceedings, so should the United States Constitution.”).
However, the majority of appellate courts deciding the issue after Ex parte Doan have found that
the Confrontation Clause is inapplicable to adjudication and revocation hearings because
Ex parte Doan “did not hold that they constitute a phase of ‘criminal prosecution’ under the
Sixth Amendment.” Guillory v. State, 652 S.W.3d 923, 927 (Tex. App.—Eastland 2022, pet.
filed); see Dupas v. State, No. 07-22-00117-CR, 2022 WL 5052714, at *1–2 (Tex. App.—
Amarillo Oct. 4, 2022, pet. filed) (mem. op., not designated for publication) (applying the law of
the transferor court); Flores v. State, No. 02-21-00028-CR, 2022 WL 3097287, at *8 (Tex.
App.—Fort Worth Aug. 4, 2022, pet. ref’d) (mem. op., not designated for publication); White v.
12
State, No. 02-21-00059-CR, 2022 WL 623450, at *6 (Tex. App.—Fort Worth Mar. 3, 2022, no
pet.) (mem. op., not designated for publication); Olabode v. State, 575 S.W.3d 878, 881 (Tex.
App.—Dallas 2019, pet. ref’d) (“By its own terms, the Confrontation Clause applies only to
criminal prosecutions, and a probation revocation, whether it follows ‘regular’ probation or
deferred adjudication probation, is not a stage of criminal prosecutions.”).
To date, the CCA has not resolved the split among our sister courts on this issue. See
Inman v. State, No. PD-0251-22, 2023 WL 3495573, at *1 (Tex. Crim. App. May 17, 2023)
(per curiam) (noting that the CCA “granted review of the Confrontation Clause issue” but
concluded the “decision to grant review was improvident”).
C. Cunningham Had the Right to Confront the Key Witness Against Him
After reviewing the rationale of our sister courts on this issue, we conclude that the
Confrontation Clause applied to Cunningham’s adjudication proceeding. In doing so, we decline
to follow the majority of our sister courts, which base their reasoning on Morrissey and
Scarpelli’s language that community supervision and parole revocation proceedings are not a
stage of a criminal prosecution.
We begin by noting that neither Morrissey nor Scarpelli considered whether the right of
confrontation was available in revocation and parole proceedings under the Confrontation Clause
of the Sixth Amendment. Morrissey, 408 U.S. at 477; Scarpelli, 411 U.S. at 782. Instead, both
cases found that, under the federal system, the “minimum requirements of due process” under the
Fourteenth Amendment included the right to confrontation in both revocation and parole
hearings because they could result in a loss of liberty. Scarpelli, 411 U.S. at 786 (quoting
13
Morrissey, 408 U.S. at 489). To use these cases to deny the right to confrontation in Texas
adjudication and revocation proceedings under the Sixth Amendment simply because Scarpelli
and Morrissey employed the language that federal revocations are not criminal prosecutions
seems incongruous with the CCA’s explanation in Ex parte Doan that “there are few procedural
differences between a Texas criminal trial and a Texas community-supervision revocation
proceeding.” Ex parte Doan, 369 S.W.3d at 210.
Here, the State was represented by a prosecutor in a hearing before a judge where the
rules of evidence applied. Notwithstanding the fact that Cunningham had pled guilty and signed
the typical plea paperwork applicable to the underlying offense, the end result of the proceeding
was a conviction and sentence for the underlying offense that resulted in a loss of Cunningham’s
liberty. As far back as 1968, Judge Jack Onion noted, “[I]t would be difficult for any student of
the law to conclude that [Texas] revocation hearings are not criminal proceedings ‘where
substantial rights of an accused may be affected.’” Crawford v. State, 435 S.W.2d 148, 151
(Tex. Crim. App. 1968) (Onion, J., dissenting).
Morrissey noted that “[t]he [defendant] is not the only one who has a stake in his
conditional liberty. Society has a stake in whatever may be the chance of restoring him to
normal and useful life within the law.”4 Morrissey, 408 U.S. at 484. Our consideration of
societal interests leads us to be unpersuaded by our sister court’s arguments that Doan
conclusively established that adjudication and revocation hearings are not criminal prosecutions
4
Notwithstanding the conditional nature of “[t]he liberty of a parolee,” Morrissey noted that the interest at stake
“includes many of the core values of unqualified liberty and its termination inflicts a ‘grievous loss’ on the parolee
and often on others.” Morrissey, 408 U.S. at 482.
14
because they used the term “judicial proceedings” to describe them. Doan, 369 S.W.3d at 212.
This is especially so where the CCA has already decided that there is a Sixth Amendment right
to counsel in adjudication hearings even though the express terms of the Sixth Amendment say
that right applies only to criminal prosecutions. Parker v. State, 545 S.W.2d 151, 155 (Tex.
Crim. App. 1977). In doing so, the CCA noted that it had previously determined that “revocation
proceedings cannot be isolated from the context of the criminal process” and referred to them as
criminal prosecutions. Id. (quoting Crawford, 435 S.W.2d at 151). After examining the facts of
this case, in light of Ex parte Doan, we find that Cunningham’s adjudication hearing was a part
of the criminal prosecution.5
Moreover, “[t]he central issue to be determined in reviewing a trial court’s exercise of
discretion in a community supervision revocation case is whether the defendant was afforded due
process of law.” Tapia, 462 S.W.3d at 41 (citing Leonard v. State, 385 S.W.3d 570, 577 (Tex.
Crim. App. 2012)). We find that Cunningham’s trial objection and briefing fairly subsumes a
due process issue. “[A] party need not spout ‘magic words’ or recite a specific statute to make a
valid objection.” Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009). Instead, “[a]ll a
party has to do . . . 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.” Id. (quoting Lankston v. State, 827 S.W.2d 907(Tex. Crim. App. 1992)). Cunningham’s objection clearly informed the trial court that he sought
5
Marzek v. State, No. 06-10-00087-CR, 2011 WL 238347, at *1 (Tex. App.—Texarkana Jan. 25, 2011, no pet.)
(mem. op., not designated for publication) (applying the Confrontation Clause to a revocation proceeding); see
Galloway v. State, No. 06-13-00157-CR, 2014 WL 2129525, at *1 n.3 (Tex. App.—Texarkana May 22, 2014, no
pet.) (mem. op., not designated for publication) (suggesting that, after Ex parte Doan, the Confrontation Clause
applies to revocation proceedings).
15
to exclude Allen’s testimony about his CSO’s notes on confrontation grounds. His brief
mentions Scarpelli, the Fourteenth Amendment, and Pointer v. Texas, in which the United States
Supreme Court said, “[W]e have expressly declared that to deprive an accused of the right to
cross-examine the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of
due process of law.” Pointer v. Texas, 380 U.S. 400, 405 (1965). As a result, we find that
Cunningham has preserved a due process issue and, based on Scarpelli and Morrissey, conclude
that Cunningham was entitled to confront the witnesses against him.6
D. Cunningham’s Right to Confrontation Was Violated
The admission of a testimonial, out-of-court statement from a declarant who does not
appear at trial violates the Confrontation Clause unless the declarant was unavailable to testify at
trial and the defendant had “a prior opportunity for cross-examination.” Davis v. Washington,
547 U.S. 813, 821 (2006); Crawford v. Washington, 541 U.S. 36, 68 (2004). We first determine
whether the complained-of statements were testimonial.
“The primary focus in determining whether a hearsay statement is ‘testimonial’ is 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) (quoting Davis, 547 U.S. at822–23). “Generally speaking, a hearsay statement is ‘testimonial’ 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 later criminal prosecution.” Id. (quoting
Davis, 547 U.S. at 822–23). “In such a situation, the person offering information is literally
6
“In Texas, the procedure for revoking probation affords a probationer greater safeguards than those required by
[Scarpelli] and Morrissey.” Tapia, 462 S.W.3d at 42.
16
bearing testimony.” Id. “[S]tatements 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” are also considered testimonial. Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App.
2010) (quoting Wall v. State, 184 S.W.3d 730, 735 (Tex. Crim. App. 2005)).
Here, even though the State represented that Allen, as Marcum’s supervisor, had
knowledge of the events in Marcum’s file, nothing showed that she had personal knowledge of
the contents of the file, and counsel obtained a running Confrontation Clause objection to all of
Allen’s testimony. From Marcum’s file, Allen testified that, after Marcum explained that drug
use would be a ground for revocation, Cunningham said he would be able to pass a drug test.
Allen testified that Marcum’s notes said Cunningham told her he “would be clean” on a
subsequent drug test. From Marcum’s notes, Allen also testified about Cunningham’s statements
to Marcum attempting to explain the reasons for the positive drug test, which showed that he had
“changed his story.”
Allen testified about those out-of-court statements offered for the truth of the matter
asserted. TEX. R. EVID. 801(d). Cunningham’s statements to his CSO were made as a result of
questioning from an arm of law enforcement to establish past events potentially relevant to a
revocation hearing that would result in his criminal conviction. The statements were made under
circumstances that would lead an objective witness to believe they would be used at a revocation
hearing. We find that Allen’s testimony about Marcum’s account of the statements Cunningham
gave her included testimonial hearsay. See Pickins v. State, No. 02-17-00050-CR, 2018 WL
3468359, at *2–3 (Tex. App.—Fort Worth July 19, 2018, no pet.) (mem. op., not designated for
17
publication) (finding that community supervision officer’s testimony based on statements in
community supervision records constituted testimonial hearsay).
Allen also testified about Marcum’s notes, which said that a preliminary drug test
administered by an unidentified male employee of the community supervision department was
positive.7 Allen also testified about the laboratory result of Cunningham’s urinalysis, which was
admitted through Allen over objection. “The admission of a lab report created solely by a non-
testifying analyst, without calling that analyst to sponsor it, violates the Confrontation Clause.”
Paredes v. State, 462 S.W.3d 510, 517 (Tex. Crim. App. 2015); see Burch v. State, 401 S.W.3d
634, 637 (Tex. Crim. App. 2013) (citing Bullcoming v. New Mexico, 564 U.S. 647, 665 (2011)).
Consequently, we find that Cunningham’s right to confrontation was violated. To avoid
violating Cunningham’s right to confrontation, there must have been some evidence showing
that Marcum and the laboratory analyst were unavailable to testify and that Cunningham had a
prior opportunity for cross-examination. Here, the State showed neither.
E. Cunningham Suffered Constitutional Harm
Our harm analysis is governed by Rule 44.2(a) of the Texas Rules of Appellate
Procedure, which requires us to reverse unless convinced “beyond a reasonable doubt that the
error did not contribute” to the revocation of Cunningham’s community supervision and the
adjudication of his guilt. TEX. R. APP. P. 44.2(a); Crayton v. State, 485 S.W.3d 488, 505 (Tex.
App.—Texarkana 2016, no pet.). In making our determination, we view the entire record and
consider the following factors:
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Allen testified that this preliminary test must have been administered by an unidentified male employee of the
community supervision department.
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“(1) the importance of the [complained-of] evidence to the State’s case; (2)
whether the . . . evidence was cumulative of other evidence; (3) the presence or
absence of other evidence corroborating or contradicting the [complained-of]
evidence, . . . ; (4) the overall strength of the State’s case”; and (5) any other
factor in the record that affects the probable impact of the error.
Crayton, 485 S.W.3d at 505 (alterations in original) (quoting Clay v. State, 240 S.W.3d 895, 904
(Tex. Crim. App. 2007)).
Here, we find that Cunningham was harmed by the admission of Allen’s testimony. The
State had the burden of establishing that Cunningham used methamphetamine after June 10. Its
evidence on that issue was not strong. The statements in Marcum’s file that were the substance
of counsel’s Confrontation Clause objection and the objected-to laboratory report were the sole
pieces of evidence comprising the State’s case-in-chief against Cunningham. While
Cunningham did agree that he told Marcum he could pass a drug test on June 10, the results from
the preliminary drug test in Marcum’s file and the laboratory report were not cumulative of any
other evidence.
The record shows that Marcum was the key witness in the State’s case, but Cunningham
had no opportunity to confront her. In short, the evidence should have been excluded under the
Confrontation Clause and, as a matter of due process, was absolutely critical to the State’s case.
Without it, the evidence would have been insufficient to establish that Cunningham violated a
term and condition of community supervision by ingesting methamphetamine after he was
placed on community supervision, and Cunningham would have had no obligation to make any
defense at the hearing. Given these facts, we are not convinced “beyond a reasonable doubt that
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the error did not contribute” to revocation of Cunningham’s community supervision and the
adjudication of his guilt. TEX. R. APP. P. 44.2(a).
Because Cunningham suffered constitutional harm, we sustain Cunningham’s last point
of error.
IV. Conclusion
We reverse the trial court’s judgment and remand the matter to the trial court for a new
adjudication hearing.
Charles van Cleef
Justice
Date Submitted: May 25, 2023
Date Decided: June 22, 2023
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