Jason Burrows v. State

ACCEPTED
01-15-00302-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/6/2015 9:54:06 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00302-CR FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
In the 11/6/2015 9:54:06 PM
Court of Appeals CHRISTOPHER A. PRINE
Clerk
For the
First District of Texas
At Houston
⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯
Cause No. 74447
In the 412th Judicial District Court
Of Brazoria County, Texas
⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯
JASON BURROWS
Appellant
V.
THE STATE OF TEXAS
Appellee
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APPELLANT’S BRIEF
⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯
SCOT R. COURTNEY
TBC No. 00790515
P.O. Box 787
San Marcos, Texas 78667-0787
Tel.: 512-392-9292
Fax No.: 512-532-6766
EM: sanmarcoslaw@gmail.com
Counsel for Appellant
ORAL ARGUMENT REQUESTED
IDENTIFICATION OF ALL PARTIES
APPELLANT: JASON BURROWS
2902 Kensington Park
Pearland, Texas 77584
TRIAL PROSECUTOR: CHASE CLAYTON-LEAD
TBC No. 24072040
AARON PERRY
TBC No. 24068270
Assistant District Attorney
111 E. Locust St., Suite 408A
Angleton, Texas 77515
Tel.: 979-864-1230
DEFENSE COUNSEL AT TRIAL: GREG CAGLE-LEAD
TBC No. 00790414
1602B State St.
Houston, Texas 77007
Tel.: 800-848-2088
SCOT COURTNEY
TBC No. 00790515
P.O. Box 787
San Marcos, Texas 78667-0787
Tel.: 512-392-9292
Fax No.: 512-532-6766
E: sanmarcoslaw@gmail.com
PRESIDING JUDGE AT TRIAL: HON. W. EDWIN DENMAN
APPELLANT’S COUNSEL: SCOT COURTNEY
TBC No. 00790515
P.O. Box 787
San Marcos, Texas 78667-0787
Tel.: 512-392-9292
Fax No.: 512-532-6766
EM:sanmarcoslaw@gmail.com
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TABLE OF CONTENTS
IDENTIFICATION OF PARTIES ........................................................ i
TABLE OF CONTENTS ..................................................................... ii
INDEX OF AUTHORITIES ............................................................... iii
STATEMENT OF JURISDICTION .................................................... v
ISSUES PRESENTED ........................................................................ vi
STATEMENT OF FACTS ................................................................. vii
SUMMARY OF THE ARGUMENT .................................................. ix
ARGUMENT AND AUTHORITY
POINT OF ERROR NO. ONE................................................... 1
POINT OF ERROR NO. TWO .................................................. 9
PRAYER ............................................................................................ 16
CERTIFICATE OF SERVICE ........................................................... 17
CERTIFICATE OF COMPLIANCE ................................................. 17
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INDEX OF AUTHORITIES
CASE PAGE
Abdnor v. State, 871 S.W.2d 726 (Tex.Crim.App.1994) ..................... 7
Almaguer v. State, 2014 WL 5088386 (Tex. App. Oct. 9, 2014) . 12, 15
Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984) ................... 7
Arthur v. State, 11 S.W.3d 386 (Tex. App. 2000) .............................. 10
Brooks v. State, 132 S.W.3d 702 (Tex.App.-Dallas 2004, pet. ref'd). 14
Burch v. State, 401 S.W.3d 634 (Tex.Crim.App. 2013)..................... 11
Crawford v. Washington, 541 U.S. 36, (2004) ............. 9, 11, 12, 13, 16
Carriere v. State, 84 S.W.3d 753
(Tex.App.-Houston [1st Dist.] 2002) ................................................ 4,5
Davis v. State, 968 S.W.2d 368 (Tex.Crim.App. 1998) ..................... 10
De La Paz v. State, 273 S.W.3d 671 (Tex.Crim.App.2008) .............. 12
Davis v. Washington, 547 U.S. 813 (2006) .................................. 10, 12
Fields v. State, 1 S.W.3d 687 (Tex.Crim.App.1999) ................... 10, 11
Fluellen v. State, 104 S.W.3d 152
(Tex.App.-Texarkana 2003, no pet.) .................................................... 5
Geesa, 820 S.W.2d 154 (Tex.Crim.App. 1991) ............................... 2, 3
Gutierrez v. State, 150 S.W.3d 827
(Tex.App.-Houston [14th Dist.] 2004, no pet.) ................................. 14
Hanks v. State, 104 S.W.3d 695
(Tex.App.-El Paso 2003, pet. granted) ................................................. 5
Hereford v. State, 444 S.W.3d 346 (Tex. App. 2014) ........................ 12
Langham v. State, 305 S.W.3d 568 (Tex.Crim.App.2010) .......... 13, 16
Lee v. State, 143 S.W.3d 565 (Tex.App.-Dallas 2004, pet. ref'd) ...... 14
Marquez v. State, 725 S.W.2d 217 (Tex.Crim.App.1987) .................. 2
Mays v. State, 318 S.W.3d 368 (Tex. Crim. App. 2010)...................... 4
McGinty v. State, 723 S.W.2d 719 (Tex.Crim.App.1986) ................... 2
Minor v. State, 91 S.W.3d 824
(Tex.App.-Fort Worth 2002, pet. ref'd) ................................................ 5
Mitchell v. State, 931 S.W.2d 950 (Tex.Crim.App. 1996) ................. 11
Molina v. State, 450 S.W.3d 540 (Tex. App. 2014) ........................... 11
O'Canas v. State, 140 S.W.3d 695 (Tex. App.-Dallas 2003) .............. 5
Ochoa v. State, 119 S.W.3d 825
(Tex.App.-San Antonio 2003, no pet.) ................................................. 5
Paez v. State, 995 S.W.2d 163
(Tex.App.—San Antonio 1999, pet. ref'd) ........................................... 9
Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App.2000) .......... 2, 3, 4, 5
Phillips v. State, 72 S.W.3d 719
(Tex.App.-Waco 2002, no pet.) ............................................................ 5
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Reyes v. State, 938 S.W.2d 718 (Tex.Crim.App.1996) ................... 2, 3
Rodriguez v. State, 96 S.W.3d 398 (Tex. App.-Austin 2002) ...... 2, 5, 6
Saunders v. State, 817 S.W.2d 688 (Tex.Crim.App.1991) .................. 7
Scott v. State, 165 S.W.3d 27 (Tex.App.-Austin 2005, pet. stricken) 14
Torres v. State, 116 S.W.3d 208 (Tex.App.-El Paso 2003, no pet.)..... 5
Tyl. v. State, 167 S.W.3d 550
(Tex. App.-Houston [14th Dist.] 2005) .............................................. 14
United States v. Langer, 962 F.2d 592 (7th Cir.1992) ......................... 6
United States v. Saget, 377 F.3d 223, 228 (2nd Cir.2004) ................. 14
Vosberg v. State, 80 S.W.3d 320
(Tex.App.-Fort Worth 2002, pet. ref'd) ................................................ 5
Walker v. State, 180 S.W.3d 829
(Tex. App.-Houston [14th Dist.] 2005) .............................................. 15
Wall v. State, 184 S.W.3d 730 (Tex.Crim.App.2006) ........................ 12
Whitson v. State, 495 S.W.2d 944, 946 (Tex.Crim.App.1973) ............ 6
Wiggins v. State, 152 S.W.3d 656
(Tex.App.-Texarkana 2004, pet. ref'd) .............................................. 14
STATUTES, CODES & RULES PAGE
Tex.Code Crim. Proc. 37.07 §3(a) ..................................................... 10
T.R.A.P. 9.4(i)(2) ............................................................................... 17
T.R.A.P. 44.2 ...................................................................................... 15
T.R.A.P. 44.2(a) ................................................................................. 17
Tex.R. Evid. 801(d) ............................................................................ 12
U.S. Const. Amend. VI....................................................................... 11
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TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF JURISDICTION
Appellant was charged by indictment alleging the Class A
Misdemeanor of Official Oppression, alleged to have occurred on June 10,
2012 in Brazoria County, Texas. After a trial on the merits, a jury returned a
verdict of guilty on the charge of Official Oppression. The Court sentenced
Appellant to three hundred sixty-five days (365) in the Brazoria County Jail
and a Two Thousand Dollar ($2,000.00) fine on March 27, 2015.
Appellant’s request for bond pending appeal was granted and Appellant
released upon satisfaction of said bond. Timely Notice of Appeal was filed
and this matter properly transferred to this Court for appellate review.
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ISSUES PRESENTED
POINT OF ERROR NO. ONE
THE TRIAL COURT ERRED IN INSTRUCTING THE JURY “IT IS
NOT REQUIRED THAT THE PROSECUTION PROVE GUILT BEYOND ALL
POSSIBLE DOUBT.”
POINT OF ERROR NO. TWO
THE TRIAL COURT ERRED IN ALLOWING AND CONSIDERING
EVIDENCE OF EXTRANEOUS CONDUCT BASED ON HEARSAY
AND IN VIOLATION OF DEFENDANT’S DUE PROCESS RIGHTS
AS RECOGNIZED UNDER CRAWFORD.
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STATEMENT OF FACTS
On June 10, 2012, Mariana Martinez alleged that at approximately
4:30a.m., while traveling to her workplace located at 1608 Hwy. 6, Alvin,
Texas, a marked patrol unit was behind her as she traveled down CR 99.
Sometime after she swerved in the roadway to avoid a dog, the marked
patrol unit activated the patrol/emergency equipment. In response, she
pulled over and a white male officer approached her, requested identification
and advised her of the reason for the stop (i.e. swerving). Ms. Martinez
advised she did not have a driver’s license and was asked to step out of the
car. After a brief interview, the Officer advised Ms. Martinez to get back in
her car and rive to the Spin-In Market, located at 2246 CR 99, in Alvin,
Texas, approximately 1½ miles from the initial stop location.
Ms. Martinez testified that she parked at the end of the building and
the patrol unit parked directly behind her. The Officer approached the car
and then told her to get out of the car; she complied and walked to back of
her car. She testified that the Officer asked her questions. The Officer told
her to turn around and began a search of her from the waist up and then told
her to turn around and to told her to go to the back of the store where it was
dark. She complied. At that point, the Officer ordered her to lift her shirt;
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she complied. Ms. Martinez testified that at that point, the Officer fondled
her breasts. The Officer then stopped and allowed her to leave.
Ms. Martinez reported this incident on June 11, 2012 and on June 29,
2012 she identified Defendant from a photo line-up (See State’s Ex. No. 8
[RR Vol. 8]).
Testimony revealed that no evidence of the stop was contained on the
patrol unit assigned to him on the above-referenced date. Furthermore, all
digital evidence, including the computer data logs from the patrol unit
assigned to the Defendant had been destroyed by the investigating officer(s).
No video evidence captured the events alleged. The computer hard-drive
containing the digital evidence relating to the in-car video system reflected
that there was no download of the evidence to the main system and was also
apparently destroyed by investigating agents. Both the vehicle assigned to
Defendant at the time of the allegation, as well as the in-car digital recording
system from the time of the allegation was disposed of by the Brazoria
County Sheriff and was never made available to the defense for inspection
and/or examination.
During the Punishment phase, testimony was heard (over objection)
that Appellant had been identified via photo spread, during the investigation
of an unrelated allegation. This testimony was from an investigating officer
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and no other witness was called to testify relating to this allegation. The
alleged complainant was not called to testify, however was subpoenaed by
the State, but failed to appear.
SUMMARY OF THE ARGUMENT
A brief summary of the argument contained in Appellant’s Brief
includes: 1) Trial Court’s erred in allowing an instruction relating to the
definition of reasonable Doubt; and 2) Trial court erred in admitting and
considering evidence over objections based on Hearsay, Foundation and
Crawford.
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ARGUMENT & AUTHORITY
POINT OF ERROR NO. ONE
THE TRIAL COURT ERRED IN INSTRUCTING THE
JURY “IT IS NOT REQUIRED THAT THE PROSECUTION PROVE
GUILT BEYOND ALL POSSIBLE DOUBT.”
Upon review of the proposed Jury Instructions, Defense Objected to
the inclusion of a definition of “reasonable doubt” that was included, at the
behest and request of the State in those instructions. The following is an
excerpt of that portion of the hearing/charge conference:
We have one objection. That objection is to the language
included on page 3, second full paragraph, second sentence.
That reads, “It is not required that the prosecution prove
guilt beyond all possible doubt.” We'd ask that that be
stricken. It's our position that the caselaw out of the 3rd
District as well as the 14th and cited cases -- I believe it's
Rodriguez. I can't recall the cite, the cite that we gave the
Court yesterday we discussed. And Progeny is error. It's our
position that the caselaw suggests that it is prudent -- well,
absent an agreement by the parties that it is an error and
prudent practice not to be included over objection.
THE COURT: I'll overrule that objection.
(See RR VI, pg. 4-5)
It should be noted that the Pattern Jury Charges promulgated by the
State Bar of Texas do not contain, nor advocate for the inclusion of such a
definition.
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Secondly, it is most significant that the Second Jury note sent out
during deliberations read “We want a definition of reasonable doubt that is
not influenced by the State or defense.” (See CR Vol. I, pg. 175)
Prior to the 1991 decision in Geesa and for well over a century, Texas
trial courts normally did not define “reasonable doubt” in jury charges. See
Rodriguez, supra, citing, McGinty v. State, 723 S.W.2d 719, 721
(Tex.Crim.App.1986). Additionally, a trial court’s refusal to define such,
even when requested, was frequently held not to be error. See Rodriguez,
supra, citing, Marquez v. State, 725 S.W.2d 217, 241 (Tex.Crim.App.1987).
As the Court is also aware, On November 6, 1991, the Court of Criminal
Appeals in Geesa adopted a definition of proof beyond a reasonable doubt
and required that it be given “in all criminal cases, even in the absence of an
objection or request by the State or the defendant, whether the evidence be
circumstantial or direct.” Geesa, 820 S.W.2d at 162. In Reyes v. State, 938
S.W.2d 718, 720–21 (Tex.Crim.App.1996), the Court held that the above
described holding in Geesa created an “absolute systemic requirement” that
cannot be waived or forfeited or be subject to a harm analysis in a case
where the Geesa definition was totally omitted.
Then came Paulson. In reviewing the trial court’s complete omission
of the Geesa definition, the Fourteenth Court of Appeals, on the basis of
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Geesa and Reyes dutifully, but reluctantly found “automatic reversible
error.” Paulson v. State, 991 S.W.2d 907, 917 (Tex.App.-Houston [14th
Dist.] 1999), rev'd, 28 S.W.3d 570 (Tex.Crim.App.2000). PDR was granted
in Paulson and the Court of Criminal Appeals overruled Reyes in its entirety
and overruled Geesa, insofar as that decision required trial courts to instruct
juries on the mandated definition of “reasonable doubt.” Paulson, 28 S.W.3d
at 573.
“It is ill-advised for us to require trial courts to provide the jury with a
redundant, confusing, and logically-flawed definition when the Constitution
does not require it, no Texas statute mandates it, and over a hundred years of
pre-Geesa precedent discourages it.” Id. at 572–73. The Paulson opinion
further added: “We find that the better practice is to give no definition of
reasonable doubt at all to the jury. On the other hand, if both the State and
the defense were to agree to give the Geesa instruction to the jury, it would
not constitute reversible error for the trial court to acquiesce to their
agreement. Id. at 573.
Paulson returned Texas law to its pre-Geesa condition - “it is not error
to refuse to define reasonable doubt.” 43 George E. Dix & Robert O.
Dawson, Texas Practice: Criminal Practice and Procedure § 36.34 (2d ed.
Supp.2002).
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In the fallout from Paulson, came a series of decisions that currently
leaves this particular state of affairs unsettled and unsettling.
Notwithstanding the following review of the various Courts and their
respective views, all Court’s, based upon the dictate of the Texas Court of
Criminal Appeals must agree that “the better practice is to give no definition
of reasonable doubt at all to the jury”. See, Mays v. State, 318 S.W.3d 368,
389 (Tex. Crim. App. 2010) & Paulson v. State, 28 S.W.3d 570, 573
(Tex.Crim.App.2000).
Granted, early on this Court weighed-in with it’s decision in Carriere
v. State, 84 S.W.3d 753, 759 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd),
which held that the language at issue did not constitute a definition of
reasonable doubt and therefore did not violate Paulson. This Court
however, tempered such with the following, “[t]he Paulson court held the
“better practice” was to avoid defining reasonable doubt for the jury. Id.
“Better practice” does not preclude a court from submitting a proper charge
in a different fashion. If including any instruction or definition regarding
reasonable doubt would constitute error, the Paulson court was in a position
to say so and, instead, it remained silent to that effect. We must review each
charge, and each objection therein, on a case-by-case basis, to determine if
error exists. Id. at 760.
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Since that time, other courts of appeals (Fort Worth, San Antonio,
Texarkana, El Paso and Dallas), have agreed with Carriere ' s determination
that language similar to the language at issue presently, does not define
reasonable doubt.1
The Waco Court was also early to review such language in Phillips v.
State, 72 S.W.3d 719 (Tex.App.-Waco 2002, no pet.) and found that
“[b]ecause the Court of Criminal Appeals was clear on the point—give it all
if the parties agree or give none of it—we hold that it was error to give part
of the Geesa instruction in the absence of an agreement.” The Phillips court
determined, as did the Austin Court in Rodriguez, supra, that the error was
harmless, however the Austin Court did not fully agree with the Waco Court
of Appeals’ strict Paulson construction in Phillips. The Austin Court’s
rational was that: “attempts to define reasonable doubt do not usually make
it clearer in the minds of the jurors, often they tend to impermissively
increase or lessen the burden of proof or utilize additional terms which
themselves require definition.” See Rodriguez, supra, citing, Paulson, at
912. The Austin Court went on to opine that “[i]t has been said that ‘any
use of an instruction defining reasonable doubt presents a situation
1
See Ochoa v. State, 119 S.W.3d 825, 829 (Tex.App.-San Antonio 2003, no pet.); Torres
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equivalent to playing with fire.’” Id. (quoting United States v. Langer, 962
F.2d 592, 600 (7th Cir.1992)).
The Austin Court’s Rodriguez decision clearly recognizes that the
criminal defendant in Texas is entitled to a jury charge on proof of guilt
beyond a reasonable doubt, however keenly observed that “[t]he charge on
reasonable doubt should be given in the language of the statute; attempts to
amplify it, explain it or belittle it almost invariably lead to a reversal.”
Rodriguez v. State, 96 S.W.3d 398 (Tex. App.-Austin 2002), quoting, 1
A.R. Stout, Branch's Anno. Penal Code § 16 (2d ed.1956) (citations
omitted); see also Whitson v. State, 495 S.W.2d 944, 946
(Tex.Crim.App.1973).
Such has left open to interpretation, the application of a harmless error
analysis to remedy such instructions that are included over the “better
practice” philosophy. Both the Waco and Austin Courts recognized this and
others have followed suit.
Each Court seemingly and in some way, acknowledges that “[e]rror in
a jury charge, if timely objected to in the trial court, requires reversal if the
error resulted in some harm, i.e., if the error was calculated to injure the
defendant's rights.” See Abdnor v. State, 871 S.W.2d 726, 731–32
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(Tex.Crim.App.1994) & Almanza v. State, 686 S.W.2d 157, 171
(Tex.Crim.App.1984) (op. on reh'g).
Clearly, the actual degree of harm “must be assayed in light of the
entire jury charge, the state of the evidence, including the contested issues
and the weight of probative evidence, the argument of counsel and any other
relevant information revealed by the record of the trial as a whole.”
Saunders v. State, 817 S.W.2d 688, 690 (Tex.Crim.App.1991) (quoting
Almanza, 686 S.W.2d at 171). Appellant has the burden to show that he
suffered some actual harm from the charge error, and if he fails in this
endeavor, the error will not require reversal. Abdnor, 871 S.W.2d at 732.
It cannot be argued that intentionally following a charging practice
that is not the best practice can foster proper adherence to a suitable standard
of due process. The case at hand illustrates exactly the problem with the
inclusion of the language, over express and pointed objection and further
illustrates the harm inherent in its inclusion.
The jury question is the best evidence to demonstrate the extreme
impact such language can manifest. So much so, that the Jury was
compelled to request further instruction and/or definition of the term
“reasonable doubt” from the Court during deliberations. Clearly, the
language relating to that term had been discussed at length and questions
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remained in the minds of the jurors. It clearly had an effect on them in some
way and certainly some harm from the inclusion of this language contributed
to the conviction. The present case illustrates the manifestation of the harm,
as well as illustrates how such harm is created when the best practices are
not adhered to.
In light of the precept that exclusion of such language is the better
practice, objections to it’s inclusion, a harm analysis and the exacerbation of
the jury note evidencing their confusion and focus on that particular
standard, all specifically evidence a ruling that adversely affected
Appellant’s rights to due process to the degree that reversal is warranted.
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POINT OF ERROR NO. TWO
THE TRIAL COURT ERRED IN ALLOWING AND
CONSIDERING EVIDENCE OF EXTRANEOUS
CONDUCT BASED ON HEARSAY AND IN VIOLATION
OF DEFENDANT’S DUE PROCESS RIGHTS AS
RECOGNIZED UNDER CRAWFORD.
During the punishment phase of the trial, the State called Francine
Varga, an investigator with Brazoria County Sheriff’s Department to detail
her investigation into a reported allegation in which Appellant was identified
as the alleged perpetrator. (See RR Vol 7, pp. 22-41). The origin of the
investigation was a complaint made via telephone by Stepahnie Harold
complaint sometime in February of 2012. This witnesses’ investigation was
a follow-up to that initial complaint and began in July 2012, five (5) months
after the initial complaint.
Over objections based specifically on hearsay, foundation and
Crawford, the Court allowed the State to elicit testimony from Investigator
Vargas regarding the hearsay statements made to the Investigator by the
alleged complainant (Stephanie Harrold), as well as statements made during
the out-of-court identification procedure in which she purported to identify
Appellant and included the photo array lineup identification (See RR Vol. 7,
pp. 13-38 & State’s Ex. 20). Ms. Harold was subpoenaed by the State,
however did not appear.
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In 1993, the Texas Legislature amended article 37.07 § 3(a) to allow
at the punishment phase of a trial, evidence of unadjudicated offenses,
however only if the State proved beyond a reasonable doubt that the offense
occurred and that the defendant committed the offense. See, Arthur v. State,
11 S.W.3d 386, 392 (Tex. App. 2000); see also, Act of May 29, 1993, 73rd
Leg., R.S., ch. 900, § 5.05, 1993 Tex. Gen. Laws 3586, (current version at
Tex.Code Crim. Proc. Art. 37.07 § 3(a)); see also Paez v. State, 995 S.W.2d
163, 167 (Tex.App.—San Antonio 1999, pet. ref'd). Presently, the State
may offer evidence of any extraneous crime or bad act that is shown, beyond
a reasonable doubt, either to have been (1) an act committed by the
defendant or (2) an act for which he could be held criminally responsible.
See Fields v. State, 1 S.W.3d 687, 688 (Tex.Crim.App.1999); see also
Tex.Code Crim. Proc. Art. 37.07 § 3(a). “Prior crimes or bad acts are
introduced to provide additional information which the jury may consider in
determining what sentence the defendant should receive.” See Arthur, supra,
quoting, Fields, supra at 688; Davis v. State, 968 S.W.2d 368, 373
(Tex.Crim.App. 1998).
This is permissible only after the trial judge has made a threshold
determination that evidence regarding an extraneous crime is relevant and
that such evidence may not be considered in assessing punishment until the
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fact-finder is satisfied beyond a reasonable doubt that these prior acts are
attributable to the defendant. See, Fields, supra at 688; & Mitchell v. State,
931 S.W.2d 950, 953 (Tex.Crim.App. 1996). Once the threshold is met, the
fact-finder may use the evidence however it chooses in assessing
punishment. See Fields, supra at 688.
Such is not unfettered and without limitation. This restriction is found
in the Confrontation Clause, which affords a criminal defendant the right to
confront the witnesses against him. See U.S. Const. Amend. VI; see also,
Molina v. State, 450 S.W.3d 540, 549-50 (Tex. App. 2014) & Burch v. State,
401 S.W.3d 634, 636 (Tex.Crim.App. 2013). One such limitation restricts
the use of “testimonial evidence” unless (1) the witness appears at trial and
is cross-examined or (2) the witness is unavailable and the defense had an
opportunity to cross-examine. Molina, supra at 550, citing Burch, supra at
636. “[T]estimonial statements are those ‘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.’” Id. (quoting
Crawford v. Washington, 541 U.S. 36, 52, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004)).
In order to properly evaluate Appellant’s complained of error, the first
inquiry must be whether the statements are testimonial hearsay. In order to
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do so, one must look upon the objective purpose of the interview or
interrogation. See, Almaguer v. State, No. 13-12-00605-CR, 2014 WL
5088386, at *15 (Tex. App. Oct. 9, 2014), petition for discretionary review
refused (Mar. 18, 2015) citing, De La Paz, 273 S.W.3d at 680 (citing Davis,
547 U.S. at 822–23, 126 S. Ct. 2266).
Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted. See Tex.R. Evid. 801(d). “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. (citing Davis, 547 U.S. at 822–23, 126 S. Ct. 2266).
Clearly, such is the case at hand. All statements attributable to the out-of-
court declarant are made to an investigator who is conducting interviews that
could ultimately be used to attempt to prosecute the Defendant and for
which he was indicted.
While the U.S. Supreme Court, declined to provide a comprehensive
definition of the term in Crawford, guidance was given us in the form of
examples of what falls within the category. See Wall v. State, 184 S.W.3d
730, 734 (Tex.Crim.App.2006), Hereford v. State, 444 S.W.3d 346, 350
SC 12
(Tex. App. 2014) & Langham v. State, 305 S.W.3d at 576. These examples
include: 1) ex parte in-court testimony or the functional equivalent, such as
affidavits, custodial examinations, or prior testimony, 2) pretrial statements
that a declarant would expect to be used in a prosecution, 3) extrajudicial
statements in formalized materials such as affidavits, depositions, prior
testimony, or confessions, and 4) statements made under circumstances that
would lead an objective witness to believe it would be used in a future
judicial proceeding.
The Crawford Court also specified that the term “testimonial”
includes statements taken by police officers during interrogations and noted
that it was using the term “interrogation” in a colloquial rather than a
technical legal sense. Id. at 52, 53 n. 4, 68, 124 S. Ct. 1354. To illustrate this
point, the Court asserted that the declarant's recorded statement, “knowingly
given in response to structured police questioning,” qualified as testimonial
under any conceivable definition of “interrogation.” Id. at 53 n. 4, 124 S. Ct.
1354.
Texas courts generally have looked to the degree of formality of a
declarant's interaction with police, the purpose and structure of police
questioning, and the likelihood that the declarant expects that the statements
could be used in a criminal prosecution and further delineates that
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testimonial statements “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,” and that the procedure used to
procure the statement determines whether the statement is testimonial. Tyler,
167 S.W.3d at 553 (citing Scott v. State, 165 S.W.3d 27, 46 (Tex.App.-
Austin 2005, pet. stricken)); Wiggins v. State, 152 S.W.3d 656, 659
(Tex.App.-Texarkana 2004, pet. ref'd) (citing United States v. Saget, 377
F.3d 223, 228 (2nd Cir.2004)2.
The case at hand presents an investigator who is investigating
allegations of improper and/or illegal conduct of a police officer, made by a
citizen (Harold). The investigator contacted Harold, questioned her about
the report in an on-going investigation and presented her with a photo array
requesting that she identify the person that is the perpetrator. These facts
demonstrate that the setting was sufficiently formal and structured to qualify
as a police interrogation and the complaining citizen reasonably could have
2
Gutierrez v. State, 150 S.W.3d 827, 830 (Tex.App.-Houston [14th Dist.] 2004, no pet.)
(holding that accomplice's videotaped statement to police after defendant's arrest was
testimonial); Lee v. State, 143 S.W.3d 565, 570–71 (Tex.App.-Dallas 2004, pet. ref'd)
(holding that statement was testimonial because circumstances were sufficiently formal
when declarant made the statement during a traffic stop in response to police questioning
and the statement was videotaped); Brooks v. State, 132 S.W.3d 702, 707 (Tex.App.-
Dallas 2004, pet. ref'd) (holding that co-defendant's written custodial statement made
during investigation of charged offense was testimonial).
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believed that her identifications would be used in a subsequent trial of
Appellant. Lastly, the issue regarding the testimonial nature of a photo array
identification is settled as trstimonial.3
A vast majority of the testimony given by the Investigator falls
squarely into one of the categories above and are therefore inadmissible.
The question relating to the admission of the out of court identification in the
photo array, which is also testimonial,4 further exacerbates the error.
Therefore, the admission of the vast majority of the incriminating out-of-
court testimonial statements violated appellant's Sixth Amendment rights,
which is constitutional error.
When the record in a criminal case, such as this reveals constitutional
error, reversal of a judgment of conviction or punishment is required unless
a determination beyond a reasonable doubt that the error did not contribute
to the conviction or punishment. See Almaguer v. State, No. 13-12-00605-
CR, 2014 WL 5088386, at *16 (Tex. App. Oct. 9, 2014), petition for
discretionary review refused (Mar. 18, 2015) & Tex.R.App. P. 44.2(a).
The Court of Criminal Appeals has identified several relevant factors
for appellate courts to examine when determining whether constitutional
3
Walker v. State, 180 S.W.3d 829, 833-34 (Tex. App.-Houston [14th Dist.]
2005)
4
Id.
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error under Crawford may be declared harmless beyond a reasonable doubt,
namely: 1) how important was the out-of-court statement to the State's case;
2) whether the out-of-court statement was cumulative of other evidence; 3)
the presence or absence of evidence corroborating or contradicting the out-
of-court statement on material points; and 4) the overall strength of the
prosecution's case. Id., citing, Langham v. State, 305 S.W.3d 568, 582
(Tex.Crim.App.2010).
This case presents the Court with a situation where the State
supported the allegation by calling one (1) witness, therefore these
statements were: 1) essential; 2) in no way cumulative of the evidence
presented earlier in the trial; and 3) there was no corroboration of the out-of-
court statement(s) on material points.
An application of the law to the record mandates reversal and remand
for a new punishment hearing and sentencing.
PRAYER
In accordance with T.R.A.P. 44.2, Appellant respectfully prays this
Court grant the relief entitled to Appellant and remand this matter for further
and appropriate proceedings consistent with this Court’s opinion.
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Respectfully submitted,
Scot Courtney
Attorney for Appellant
P.O. Box 787
San Marcos, Texas 78667-0787
512-392-9292
512-532-6766 FAX
E-Mail: sanmarcoslaw@gmail.com
State Bar #00790515
CERTIFICATE OF SERVICE
By affixing his signature to the foregoing instrument, Scot Courtney
certifies that a true and correct copy of the same has been delivered to the
office of the Harris County District Attorney, on this the 6th day of
November, 2015.
Scot Courtney
CERTIFICATE OF COMPLIANCE
By affixing his signature to the foregoing instrument, Scot Courtney
certifies that the foregoing Brief complies with T.R.A.P. 9.4(i)(2) and
contains 3,219 words, as reflected by the word count of the computer
program used to prepare the document.
Scot Courtney
SC 17