James Harold Moon v. State

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00128-CR
JAMES HAROLD MOON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 336th District Court
Fannin County, Texas
Trial Court No. CR-17-26337
Before Morriss, C.J., Burgess and Stevens, JJ.
Opinion by Justice Burgess
OPINION
James Harold Moon was convicted by a Fannin County jury of bail jumping and failure to
appear 1 and was sentenced to six years and six months’ imprisonment. On appeal, Moon
complains that the trial court violated his right to confront witnesses against him 2 when it admitted
testimony from another proceeding to be read in this proceeding. Because we find no error by the
trial court in admitting this testimony, we affirm its judgment.
I. Background
Moon was released on bond from the Fannin County Jail after being arrested and detained
for aggravated assault of a peace officer, a first-degree felony. The bond was issued conditioned
on Moon appearing in court as required by the trial court. When the aggravated assault charges
came to trial in May 2017, Moon appeared for jury selection and the first day of the State’s case.
However, when the case was called the next morning, Moon’s attorney informed the trial court
that Moon had fallen the night before and that he had not been able to awaken Moon that morning.
When it was later determined that Moon had been taken to the Texoma Medical Center in Denison
and that at noon Moon was still unable to communicate, the trial court declared a mistrial.
One month later, the State re-tried Moon on the aggravated assault charge. After hearing
the evidence, the jury found Moon guilty of aggravated assault of a peace officer as charged in the
1
See TEX. PENAL CODE ANN. § 38.10(a) (West 2016).
2
See U.S. CONST. amend. VI.
2
indictment. The trial then proceeded to the punishment phase where Moon’s estranged wife, Lori,
testified. 3
3
As relevant to this case, Lori testified:
A. [By Lori] He came by to leave me some papers; some papers for taxes.
Q. [By the State] Just kind of showed up unannounced; isn’t that right?
A. Yes.
Q. Now, at the time, he was in the middle of a trial, wasn’t he?
A. Yes.
Q. In fact, it was the prior trial for this case, wasn’t it?
A. Yes.
Q. All right. And that night, what did -- what did he go do?
A. What do you mean?
Q. Well, did he go back to –
A. Oh. Well, he went to Windom after he left our house, I think.
Q. Was he -- obviously he wasn’t ever able to finish that trial, was he?
A. No.
Q. Why not?
A. He didn’t wake up. I don’t --
Q. Why would that be?
A. Too many sleeping pills possibly.
Q. Is that what he told you?
A. Implied that maybe that was what it was.
Q. Okay. And he had -- he was taken to the hospital. Right?
A. Yes.
Q. He was -- he was checked in. Correct?
A. Yes.
Q. And there was what’s called a mistrial granted in the trial before.
A. Yes.
Q. Okay. And then he checked himself out the next day, didn’t he?
A. Yes.
Q. And did you text him or call him or anything to check and see how he was doing?
A. Yes, I texted him because I assumed he was still in the hospital.
Q. And how was he -- what was his response to your text?
A. Well, I texted him and said, How are you doing? And he said, Good. And I said,
Well, that’s good. And he said, Well, you know I don’t like this texting. So, I called him and said,
Well -- and he said, Hello. I said, You sound really good. He said, Yeah, because I’m on my way
home.
Q. Okay.
A. So, I said, Oh, you left. He said, Yeah, I left. He said, I got a clean bill of health,
so I’m going home.
Q. And then what happened?
A. He was going to get gas and his daughter Emily was going to be bringing him his
wallet.
Q. To the house in Windom?
A. To -- I’m not sure if they had decided yet at that point where she was going to
meet him to bring it to him.
3
A few weeks after the retrial, Moon was indicted on the bail jumping and failure to appear
charge in this case. Shortly before the trial of this case, Lori died of cancer. During the
guilt/innocence stage of the trial of this case, over Moon’s objection, the trial court admitted that
portion of Lori’s testimony from the aggravated assault trial set forth in footnote 3. Moon argues
on appeal that the introduction of this testimony violated his Sixth Amendment right to confront
the witnesses against him.
II. Standard of Review
We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.
Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Abuse of discretion occurs if the
Q. Okay.
A. But he went to the gas station. I’m still not a hundred percent sure if it was in
Bonham at the time or if she was in Sherman, because we were on the phone.
Q. What were his plans that he told you he was going to do?
A. Just kind of lay low until she got the paperwork over to the judge that said he was
in the hospital.
Q. Okay. And where was he going to go?
A. Going to go to Sherman in the beginning.
Q. And then where?
A. North of the river.
Q. So, Oklahoma?
A. Oklahoma.
Q. Because, at the time, there was a warrant out for him. Right?
A. Yeah. I didn’t know this, but Emily did.
Q. And that’s what she told him?
A. Yes.
Q. And he told you?
A. Yes.
Q. All right. All right. And so, it was his plan to avoid service of the warrant by
going out of state.
A. Yeah, well, originally I think just out of county but then decided it might be better
to just go a little farther.
Q. Okay. All right.
A. Just to lay low.
Q. And ultimately he was discovered and arrested before that. Correct?
A. Yes.
(Internal quotation marks omitted).
4
decision is “so clearly wrong as to lie outside the zone within which reasonable people might
disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); Montgomery v. State,
810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g). However, the trial court’s discretion
is constrained by the defendant’s constitutional protections, including the Confrontation Clause,
which guarantee him “a meaningful opportunity to present a complete defense.” See Holmes v.
South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)
(quoting California v. Trombetta, 467 U.S. 479, 485 (1984))). A trial court’s “[m]isapplication of
the law to the facts of a particular case is a per se abuse of discretion.” State v. Ballard, 987
S.W.2d 889, 893 (Tex. Crim. App. 1999).
III. Discussion
The Confrontation Clause states, “In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI. The United
States Supreme Court has held that, “[w]here testimonial evidence is at issue,” such as testimony
from a prior proceeding, the Sixth Amendment requires the unavailability of the witness and a
prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68 (2004). In this
appeal, Moon does not contend that Lori was available, or that he did not have a prior opportunity
to cross-examine her at the prior proceeding. Rather, Moon argues that, to satisfy the
Confrontation Clause, the prior testimony cannot be used unless the testimony was from the same
case, 4 citing Mattox v. United States, 156 U.S. 237 (1895). We disagree.
4
Although not entirely clear, Moon also appears to contend that the Confrontation Clause was breached because he
did not have the same motive for cross-examining Lori at the punishment hearing of the aggravated assault trial as he
would at the guilt/innocence stage of the trial of this case. Moon does not cite any legal authority or provide any
substantive analysis supporting this proposition. Consequently, Moon has waived this argument. See Taylor v. State,
5
Mattox involved the retrial of a murder case. In the second trial, the government read into
evidence the transcript of the testimony of two witnesses in the first trial who had since died. Id.
at 240. On appeal, Mattox contended that this was a violation of the Confrontation Clause.
Speaking of the common law as it existed at the time the Confrontation Clause was drafted, the
Supreme Court noted that “the authority in favor of the admissibility of such testimony, where the
defendant was present either at the examination of the deceased witness before a committing
magistrate, or upon a former trial of the same case, is overwhelming.” Id. at 241. In addressing
the circumstances of the case before them, the Court held that the Confrontation Clause would
provide the defendant the same guarantee and explained that “[t]he substance of the constitutional
protection is preserved to the [defendant] in the advantage he has once had of seeing the witness
face to face, and of subjecting him to the ordeal of a cross-examination.” Id. at 244. Although the
narrow holding in Mattox affirmed that the Confrontation Clause allowed the admissibility of the
testimony at a former trial or hearing of the same case of a deceased witness when the defendant
had an opportunity to cross-examine her, the Court did not address whether the prior testimony
could arise from a different case. Thus, Mattox does not support Moon’s contention.
Further, none of the cases cited by Moon support his contention that the prior testimony
must have been given in the same case. 5 And none of the other cases cited by Moon require the
558 S.W.3d 215, 218 (Tex. App.—Texarkana 2018, no pet.) (“To avoid forfeiting a legal argument for inadequate
briefing, an appellant’s brief must contain ‘a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.’” (quoting TEX. R. APP. P. 38.1(i))); see Lucio v. State, 351 S.W.3d 878, 896–
97 (Tex. Crim. App. 2011); Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008).
5
See Crawford, 541 U.S. at 68; Mancusi v. Stubbs, 408 U.S. 204, 213–14 (1972); California v. Green, 399 U.S. 149,
165–168 (1970); Pointer v. Texas, 380 U.S. 400, 406–408 (1965); cf. Kirby v. United States, 174 U.S. 47, 55–61
(1899).
6
witness to be deceased, or require the testimony to be from a hearing or former trial in the same
case. Rather, they only require that the witness be unavailable and that the defendant had an
opportunity to cross-examine the witness. In Crawford, the Court reviewed the historical record
and its own Confrontation Clause jurisprudence. Crawford, 541 U.S. at 53–59. It concluded that
the Constitution’s framers understood the Confrontation Clause as prohibiting “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.” Id. at 53–54. The Court
also concluded that its own jurisprudence had remained faithful to that understanding. Id. at 59.
We find nothing in Crawford that supports Moon’s contention that the Confrontation Clause
requires the prior testimony to have been given in the same case. 6
In this case, it is undisputed that Lori was unavailable and that Moon had the opportunity
to cross-examine her at the aggravated assault trial. Therefore, we find that the trial court did not
violate Moon’s right to confront the witnesses against him when it admitted Lori’s testimony from
the aggravated assault trial. Since requirements of the Confrontation Clause were met, we find
that the trial court did not abuse its discretion in admitting the testimony. We overrule Moon’s
sole issue.
6
We also note that, for over twenty years, the Federal Rules of Evidence, the Texas Rules of Evidence, and the former
Texas Rules of Criminal Evidence have allowed the introduction of an unavailable witness’ testimony given at a trial
or hearing, whether from the same proceeding or a different proceeding. FED. R. EVID. 804(b)(1)(A) (see H.R. 5463,
93d Cong. Rule 804(B)(1) (1972)); TEX. R. EVID. 804(b)(1)(B)(i); TEX. R. CRIM. EVID. 804(b)(1). Nevertheless, Moon
has not cited any Texas or Federal appellate cases, and we are not aware of any, that hold that the admission of
testimony given at a trial or hearing in a different proceeding violates the Confrontation Clause.
7
For the reasons stated, we affirm the trial court’s judgment.
Ralph K. Burgess
Justice
Date Submitted: April 26, 2019
Date Decided: May 15, 2019
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