This page of Baker's Legal Pages contains casenotes from recent decisions of the Texas Court of Criminal Appeals. This information is made available as a free public service for your personal, non-commercial use. While every effort has been made to provide accurate material at this site, it is provided "as is" and no representations are made that it is free of mistakes or inaccuracies. If you inform me of any mistake or inaccuracy that you find here, I will make every effort to determine what corrections are required and to make those changes.

Below are casenotes from recent opinions of the Texas Court of Criminal Appeals, supplementing Baker's Texas Criminal Evidence Handbook. Each casenote is linked to the text of the opinion from which it was derived.

For links to other casesnote pages supplementing Baker's Texas Criminal Evidence Handbook, see the Criminal Evidence Handbook Casenotes Listing.

For links to casesnote pages for other handbooks, see the Main Casenotes Listing.

If you already know the name of a particular recent case of interest, you may go directly to that opinion from the Table of Recent Opinions.

ussc cases (Right of Confrontation)

• The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. [quoting Maryland v. Craig, 110 S.Ct. 3157 (1990).] Marx v State, 987 S.W.2d 577 (Feb. 3, 1999)

• The Confrontation Clause reflects a preference for face-to-face confrontation at trial, but that preference must occasionally give way to considerations of public policy and the necessities of the case. [citing Maryland v. Craig, 110 S.Ct. 3157 (1990).] Marx v State, 987 S.W.2d 577 (Feb. 3, 1999)

• A defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only when denial of such confrontation is necessary to further an important public policy and the reliability of the testimony is otherwise assured. [citing Maryland v. Craig, 110 S.Ct. 3157 (1990).] Marx v State, 987 S.W.2d 577 (Feb. 3, 1999)

• "[I]f the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant.” [quoting Maryland v. Craig, 110 S.Ct. 3157 (1990).] Marx v State, 987 S.W.2d 577 (Feb. 3, 1999)

• The requisite necessity to justify the use of two-way closed circuit television testimony of child witness in a child abuse case may be shown if the trial court determines that use of the procedure is necessary to prevent significant emotional trauma to the child witness caused by the defendant’s presence. The requisite reliability of the child witness’ testimony may be assured absent a face-to-face encounter through the combined effect of the witness’ testimony under oath (or other admonishment, appropriate to the child’s age and maturity, to testify truthfully), subject to cross-examination, and the factfinder’s ability to observe the witness’ demeanor, even if only on a video monitor. [citing Maryland v. Craig, 110 S.Ct. 3157 (1990).] Marx v State, 987 S.W.2d 577 (Feb. 3, 1999)

presenting issue: issue not preserved (Right of Confrontation)

• Nothing preserved for review on claim exclusion of evid violated Confrontation Clause, where grounds stated at trial to support offer of evid was based on rules of evid, not on constitutional grounds. Reyna v State (June 29, 2005, No. PD-0255-04)

• Nothing preserved for review where def contended for first time on appeal that admission of part of conversation under Rule 107 violated def's right of confrontation, and only trial objection was on hearsay and Rule 107 grounds. Wright v State (June 28, 2000, No. 73,004)

rules (Right of Confrontation)

• The Sixth Amendment guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. Confrontation means more than being allowed to confront the witness physically. A primary interest secured by the Confrontation Clause is the right of cross-examination. Each Confrontation Clause issue must be weighed on a case-by-case basis, carefully taking into account the defendant's right to cross-examine and the risk factors associated with admission of the evidence. In weighing whether evidence must be admitted under the Confrontation Clause, the trial court should balance the probative value of the evidence sought to be introduced against the risk its admission may entail. The trial court maintains broad discretion to impose reasonable limits on cross-examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence. Lopez v State, 18 S.W.3d 220 (May 3, 2000)

physical presence (Right of Confrontation)

• The Sixth Amendment's Confrontation Clause reflects a strong preference for face-to-face confrontation at trial. An encroachment upon face-to-face confrontation is permitted only when necessary to further an important public interest and when the reliability of the testimony is otherwise assured. Whether the reliability of the testimony is otherwise assured turns upon the extent to which the proceedings respect the four elements of confrontation: physical presence, oath, cross-examination, and observation of demeanor by the trier of fact. Romero v State (October 5, 2005, No. PD-0911-04)

no denial of right to confrontation; no error (Right of Confrontation)

• Sixth Amendment right of confrontation was not violated when trial court excluded evidence regarding the anticipated filing by the complainant against a third party of a civil lawsuit for damages arising from the crime being prosecuted. While a complainant’s civil claim against a third party may be relevant, under the proper circumstances, to show the complainant’s bias, def failed to demonstrate at trial the relevance of the proffered testimony. The record before the trial court at the time the evidence was excluded contained no indication that (1) def was a contemplated party to the anticipated lawsuit, (2) a relationship existed between criminal def and anticipated civil suit def, (3) a fact issue existed concerning the occurrence of the crime, or (4) there was any other reason to believe that the lawsuit might cause the complainant to be biased in her testimony at the criminal trial. Conviction of def for the crime would not further complainant’s objectives in the civil lawsuit. Hoyos v State, 982 S.W.2d 419 (Nov. 18, 1998)

no error: video or closed circuit tv testimony (Right of Confrontation)

• It was not violation of def's Sixth Amendment right of confrontation to allow two children (witness age 6, victim-witness age 13) to testify by two-way closed circuit television in pros for aggravated sexual assault of child, where trial court explicitly found, as a matter of fact, that the special procedure was necessary to protect both children from the significant emotional trauma of having to testify in def’s physical presence, and the record evidence reasonably supported that fact-finding; and requisite reliability of their testimony was assured because they testified after promising to do so truthfully, they were subject to cross-examination, and the jury was able to observe their demeanor. Marx v State, 987 S.W.2d 577 (Feb. 3, 1999)

no error: admission of evid (Right of Confrontation)

• Def, by his own misconduct of fatally shooting woman during a robbery or the burglary of her home, forfeited his right to confront her in court about hearsay statements she made before she died. Record clearly supported inference that def shot victims to silence them: They knew him; they lived across the street from his grandmother and were friends with her and other members of her family; def entered their home without a disguise and with a very distinguishing characteristic - his dark hair dyed blonde; there was no sign of forced entry, so he was either welcomed or walked through an unlocked door; def entered the home armed and he shot to kill; one victim, who had not even gotten up from his easy chair, was shot through the heart; other victim was also shot in the chest, and when she did not die def shot her again and again; both were shot from beyond two feet and both were left for dead. A logical inference is that def killed them because he wanted to steal their truck and their money, and he didn't want any witnesses to his crime, especially witnesses that knew him and knew where to find him. Gonzalez v State (June 21, 2006, PD-0247-05)

• No merit to contention admission of statements by co-def under 803(24) violated def's right to confrontation where the statements were non-testimonial in nature; they were casual remarks made spontaneously to acquaintances. Woods v State (December 15, 2004, No. AP-74,430)

• It was not a violation of right to confrontation to admit testimony of statement by murder victim to witness under excited utterance exception to hearsay rule. The victim was unavailable and the excited utterance hearsay exception is "firmly rooted," providing adequate indicia of reliability for the statement. Salazar v State (January 17, 2001, No. 73,451)

• Admission of hearsay accounts of co-def/declarant’s statements, which inculpated both him and def, under Rule 803(24), were sufficiently reliable as to not offend the truth-determining function of the confrontation clause. Def’s rights under the confrontation clause were not violated by admission of those statements. No merit to contention state did not produce declarant as a witness nor demonstrate that he was unavailable to testify. Because declarant made the challenged statements while attempting to dispose of murder victim’s truck, and not in the course of a prior judicial proceeding, an unavailability analysis is unnecessary. Declarant's statements carried special guarantees of credibility and reliability that are not replaceable by courtroom testimony: declarant made the incriminating statements outside of a courtroom setting; he was not under interrogation; rather, the statements were freely and spontaneously spoken to a friend. He placed himself at risk in making the statements; they were against his own penal interests because they implicated him in the commission of capital murder. Dewberry v State, 4 S.W.3d 735 (October 20, 1999)

no error: restrict cross examination (Right of Confrontation)

• It was not error to exclude cross examination of state's witness about sentence he was currently serving where witness was not eligible for good time and was no indication he had expectation that he would be rewarded for his testimony favorable to the state or be punished for testimony that was unfavorable to the state; def's offer of proof* did not establish a nexus between witness' testimony and his prison sentence. No merit to contention def was denied right of confrontation and rights under rule 613(b). Woods v State (December 15, 2004, No. AP-74,430)

• The Confrontation Clause does not require a special exception to the Rules of Evidence for sexual offenses. In instant case, it did not require admission of evidence of the complainant's prior false allegations of abuse against a person other than the defendant despite Rule 608(b)'s proscription against admitting specific instances of conduct. Court balanced probative value of the evidence offered against the risk of its admission. C/w testified that def forced c/w to perform oral sex on def. According to the testimony at trial, the events occurred when they were alone, so there were no other witnesses to corroborate either person's story; also, state had no additional evidence of def's guilt. Because the trial was a "swearing match," def had a heightened need to impeach c/w's credibility. But the excluded evidence would not have achieved that goal. Def attempted to introduce evidence that c/w had previously falsely accused his mother of physical abuse, but (1) the prior accusation was never shown to be false, and (2) the allegation that def's mother had physically abused him by throwing him against a washing machine had almost nothing in common with allegations of sexual abuse in instant offense. For these same reasons, the risk that this evidence would unduly prejudice and confuse the jury was high. Court therefore concluded that the Confrontation Clause did not demand admissibility of this evidence. Its probative value was extremely low, and the risk that its admission would confuse the jury was high. Although court declined to create a per se exception to the Rule 608(b) for sexual offenses, it expressly acknowledged that the Confrontation Clause occasionally may require the admissibility of evidence that the Rules of Evidence would exclude. Lopez v State, 18 S.W.3d 220 (May 3, 2000)

harmless error (Right of Confrontation)

• Assuming def's brother's statement was hearsay and its admission violated def's right of confrontation, any error was harmless where def was on trial for capital murder and def claimed on appeal that he was harmed because the central issue in the case was whether def had formed intent to steal victim's truck before he shot him and that without his brother's statement def was able to discredit testimony of officer and undercut statement in def's confession that he murdered victim to steal his truck. The only fact that def attacked as fabricated in his own confession was that he murdered victim to steal his truck. However, def was not indicted for stealing or attempting to steal a particular item from victim, and the law does not require the state to allege the theft of a particular item, but only to prove at trial that something was stolen, and that the intent to take it was formed before or contemporaneously with the murder. To prove its case of capital murder, the state was not required to prove that def formed the intent to steal victim's truck, or even that he took it at all. Def admitted in his statement that he took money and guns from victim during the crime. Further, he did not attack these admissions or the fact that other property belonging to the victim was found in his possession. Because the theft of the truck was not necessary to prove capital murder, and because the jury could have inferred from this evidence that def did form the intent to steal either before or contemporaneously with the murder, def's conviction for capital murder was supported regardless of the lack of any pre-formed intent to steal victim's truck. Thus, admission of the testimony did not materially affect the jury's deliberations and was harmless beyond a reasonable doubt. Shuffield v State (February 15, 2006, No. AP-74,574)

denial of right to confrontation; error (Right of Confrontation)

• Def was denied right of confrontation where he did not speak English, trial was in English and proceedings were not translated for def, and def did not affirmatively waive right to translation and was apparently unaware of that right. No merit to state's contention that def was required to object at trial because he had an ineffective interpreter, and was not deprived of an interpreter; record did not support state's claim that person (X) sitting next to def during trial was his interpreter and could have interpreted proceedings for him; X was not instructed to interpret for def, and she did not interpret for him. No merit to state's contention def waived error by failure to object at trial to lack of a translation; record reflected trial judge was aware that def needed a translator, so judge was required to ensure that proceedings were translated into a language def could understand, absent an effective waiver by def. Garcia v State (March 24, 2004, No. 0489-03)

error: admission of evid (Right of Confrontation)

• It was violation of right of confrontation to admit assault victim's out-of court statements* made during a hospital interview as an excited utterance and error was harmless as to guilt stage in light of testimony of three eyewitnesses. A reasonable person in declarant's shoes would have either retained or regained the capacity to make a testimonial statement at the time of the utterance, and a reasonable person would have appreciated the fact that the officers were conducting a criminal investigation and collecting evidence for a prospective prosecution. The fact that declarant's statement also qualified as an excited utterance exception under the Texas hearsay rule did not alter its testimonial nature. Because declarant was not available to testify at trial, and def had no prior opportunity for cross-examination, admission of the statement violated def's right to confrontation under the US Constitution. Court of appeals correctly held error was harmless as to guilt, but did not address whether it was harmless as to punishment in light of racially-charged comments attributed to def in the out-of-court statement. Cause remanded to determine if error was harmful during punishment stage. Wall v State (January 18, 2006, No. PD-1631-04)

• Defendant's Sixth Amendment right to confront witnesses was violated when a witness testified in disguise. Romero v State (October 5, 2005, No. PD-0911-04)

• It was violation of right of confrontation to admit at punishment stage in capital case county jail "incident reports" and prison "disciplinary reports" under business records exception to hearsay rule [803(6)] where the reports contained statements which appeared to have been written by corrections officers and which purported to document, in the most detailed and graphic of terms, numerous and repeated disciplinary offenses on the part of def while he was incarcerated. It further appeared that, in writing the statements, the corrections officers relied upon their own observations or, in several instances, the observations of others. None of the individuals who supposedly observed appellant's disciplinary offenses testified at his trial. Given the highly damaging nature of the reports and the fact that the prosecutor repeatedly emphasized them during his closing argument, it was impossible to say beyond a reasonable doubt that the reports did not influence the jury in its assessment of def's future dangerousness. Russeau v State (June 29, 2005, No. AP-74,466)