author: JOHN F. ONION, JR., Justice (Retired).

text:
    Vincent DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 03-04-00014-CR.
    Court of Appeals of Texas, Austin.
    May 19, 2005.
    Rehearing Overruled July 29, 2005.

      Charles A. Palmer, Austin, for Appellant.
    C. Bryan Case, Jr., Assistant District Attorney, Austin, for Appellee.
    Before Chief Justice LAW, Justices PURYEAR and ONION.

       Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).

   OPINION

JOHN F. ONION, JR., Justice (Retired).

Appellant Vincent Davis appeals his conviction for aggravated assault with a deadly weapon. See Tex. Pen.Code Ann. § 22.02(a)(2) (West Supp.2004-05). The jury found appellant guilty. The trial court assessed punishment at twelve years’ imprisonment after finding that appellant had been convicted of a prior felony as alleged for the enhancement of punishment.

Point of Error

In a single point of error, appellant claims that the trial court denied him his constitutional right of confrontation and cross-examination under the Sixth Amendment to the United States Constitution. Appellant urges that the trial court erred in admitting, over objection, the hearsay out-of-court statements of the alleged complainant made to a police officer near the scene of the offense when the alleged complainant did not testify and her unavailability was never established. Appellant relies upon Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004):

Background

The amended indictment alleged that appellant committed aggravated assault with a deadly weapon upon Patricia Ford. Hands and a rope were alleged as deadly weapons. The evidence shows that on January 6, 2003, Paula Weightman came out of her Travis County home that morning to smoke a cigarette. Weightman heard “blood-curdling” screams from the home across the street in the 1000 block of Karen Avenue where Patricia Ford and appellant lived together. She heard Ford scream, “Get out, Get out,” heard the sounds of an assault, and heard a male voice yell, “I will show you.” Weightman called 911 for police assistance. After the police arrived, Ford came running across the street, trembling and crying. Over objection, Weightman testified that Ford told her, “He tried to kill me.”

Austin Police Officers Albert Cortez and Arturo Cañizales arrived on the scene within a matter of minutes. After the 911 call, the officers heard a woman screaming and approached the front door of the house from which the screams had come. Cortez saw a woman inside yelling hysterically and holding her hands to her face. The man inside fled to the back of the house. When Cortez entered the house, he told the woman to leave. Officer Cortez located the man, later identified as appellant, in the rear of the house and handcuffed him. A rope was found in the living room. A second man, Lee Hodges, was found in the house. He rented a room from Ford. It was determined that he was not involved in the assault.

Officer Cañizales testified that he followed the woman who had exited the house to the front porch of the Weightman home. The woman was identified as Patricia Ford. According to Cañizales, Ford was still crying, trembling, and frightened. She bore signs of injuries. There was a knot on the right side of her face, blood on her lips, and a redness around her neck that soon turned into a large bruise.

At this point, appellant objected to further testimony from Cañizales on the basis, inter alia, that he was being denied the right of confrontation of the witnesses against him. The prosecutor had indicated that Ford would not testify. After a hearing in the jury’s absence, the trial court overruled the objection. There was no showing that Ford was unavailable or that appellant had had a prior opportunity to cross-examine Ford.

In the presence of the jury, Officer Ca-ñizales testified as to what Ford told him on the Weightman porch. Ford related that she and appellant began arguing about his failure to secure employment, and that he accused her of having a sexual relationship with another man. The argument escalated, and appellant knocked a cup of coffee out of her hands. Ford told Cañizales that she moved from room to room to avoid appellant, and that when she tried to leave the house appellant grabbed her shirt, pulled her back into the house, and threw her on the couch. At this point, appellant beat her around the face with his hands, then pressed his thumbs into her eyes and his fingers into her head. Appellant then put his knee into her throat while she was on the couch and told her that he was going to teach her “about talking that way to him.” Appellant then threw Ford onto the floor of the living room. As she lay on the floor, appellant took a rope and wrapped it around her neck, put his knee into her back and pulled up on the rope, lifting her torso off the floor. When Ford couldn’t breathe, she pleaded with appellant, and he released her to get her inhaler. At this juncture, Ford began screaming. Appellant responded by choking her with his hands. Shortly thereafter, the police officers arrived at the home.

Photographs reflecting Ford’s injuries were admitted into evidence. Upon being shown one of the State’s exhibits, Officer Cañizales agreed that the injury around her neck was consistent with having a rope around her neck.

William Henry Petty, assistant manager of Victim Services at the Austin Police Department, came to the scene on Karen Avenue while Ford was still there. He described Ford’s injuries and determined that she needed to be sent to a hospital. He added, without objection, that an officer at the scene had a rope that the officer said had been used and that Ford’s neck injury appeared to be consistent with strangulation by a rope. Jeanine Helton, another employee of Victim Services, saw Ford the following day, January 7th. She saw bruising on Ford’s face and a very dark bruising at the base of Ford’s neck and above the collar bone. Keith Walker, a homicide detective, was qualified as an expert, and testified that strangulation by hands or by ligature could cause death.

Appellant Davis was the only defense witness. His testimony was similar in many respects to what Ford told Officer Cañizales. Appellant said that the discussion with Ford began about “me not getting a job”; that Ford began throwing his belongings into the yard which he repeatedly retrieved; and that he started a shouting march with Ford. Appellant explained that when Ford started to throw a cup of coffee on him, he slapped the cup from her hand and hit her with an open hand causing her to fall on the floor. Appellant reported that Ford got up and “ran up on me,” that he pushed her “maybe a little too hard,” and that she fell on the couch. Appellant admitted that he then pressed his index finger on the side of Ford’s head. He was pushing on Ford’s temple when “something just said let her go and I just stopped.” Appellant acknowledged that he knew what he was doing when he hit Ford and knew it hurt her, but afterwards he knew it was a mistake.

Appellant related that the rope found in the living room was his. He used it to pull his lawn mowing equipment from yard to yard. Appellant denied that he had used the rope on Ford or that he had choked her. He testified that they were just talking when the police officers arrived.

On cross-examination, appellant acknowledged that he had been involved in a romantic relationship with Ford before the incident in question. Appellant stated that, at the time of the assault he was six feet one inch tall and weighed 198 pounds and that Ford was five feet four inches tall and weighed 135 pounds. Appellant was aware that Ford suffered from asthma and diabetes. When appellant was shown State’s exhibit no. 2, a photograph of Ford, the record reflects:

Q. And do the injuries in that picture reflect the injuries that you inflicted on her as you described when you struck her?
A. Yes ma’am.
At the conclusion of the guilt/innocenee stage of the trial at which Patricia Ford never testified, the jury found appellant guilty.

Discussion

The sole issue presented by this appeal is whether appellant was deprived of his federal constitutional right of confrontation of witnesses against him and the inclusive right of cross-examination guaranteed by the Sixth Amendment to the United States Constitution. Appellant contends that the complainant in this aggravated assault case, Patricia Ford, did not testify, and was not shown to be unavailable to the prosecution, and that there was no prior opportunity for the appellant to cross-examine her. Appellant urges that the admission of Ford’s hearsay statements incriminating him made to Officer Cañizales was an unacceptable substitute for the constitutional right of confrontation. The alleged error was duly preserved for review. In deciding the constitutional issue presented, we review the trial court’s ruling de novo. Muttoni v. State, 25 S.W.3d 300, 304 (Tex.App.-Austin 2000, no pet.).

The Sixth Amendment right of confrontation is a fundamental right and is applicable to the states by virtue of the Fourteenth Amendment. Pointer v. State, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Shelby v. State, 819 S.W.2d 544, 546 (Tex.Crim.App.1991).

While this appeal was pending, the United States Supreme Court handed down its decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which held that, without exception, testimonial hearsay statements of witnesses absent from trial áre admissible over a Sixth Amendment Confrontation Clause objection only where the declarant is unavailable and where the defendant has had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 57-60, 124 S.Ct. at 1368-69.

Crawford traced the history of the principle of confrontation from ancient Rome through eighteenth century Europe and from the colonial period in this country through the 1791 adoption of the Sixth Amendment and the cases decided under it early on. Id., 541 U.S. at 36-50, 124 S.Ct. at 1354-63. From the historical background, Crawford draws two inferences concerning the Sixth Amendment Confrontation Clause: (1) the “principal evil” targeted by the clause was the civil law’s historic practice of using ex parte examinations as evidence against the accused; id., 541 U.S. at 50, 124 S.Ct. at 1363, and (2) the Framers would not have permitted out-of-court testimonial statements to be admitted into evidence against the accused unless the witness was unavailable and the defendant had had a prior opportunity to cross-examine the witness. Id., 541 U.S. at 53-54, 124 S.Ct. at 1365. The Court concluded that the Confrontation Clause’s ultimate goal is to ensure the reliability of evidence and it demands that reliability be assessed in a particular manner: “by testing in the crucible of cross-examination.” Id., 541 U.S. at 61, 124 S.Ct. at 1370.

As explained in Brooks v. State, 132 S.W.3d 702, 707 (Tex.App.-Dallas 2004, pet. ref d), the threshold question imposed by Crawford is whether the proffered out-of-court statement is “testimonial” in nature. Crawford held that the Confrontation Clause applies to those who “bear testimony” and it stated that “testimony” is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Crawford, 541 U.S. at 51, 124 S.Ct. at 1364 (quoting N. Webster, an American Dictionary of the English Language (1828)). The Supreme Court declined to spell out a comprehensive definition of “testimonial.” Id. at 1374. The Court did, however, identify three kinds of statements that could be properly regarded as testimonial: (1) “ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” (2) “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,” and (3) “statements 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. at 1364. Statements taken by police officers in the course of interrogations are also testimonial. Id.

These examples of testimonial statements are not exclusive. The full definition of testimonial was left to the lower courts at least until the Supreme Court revisits the Crawford holding. Id. at 1374. The Court did explain that it used the term “interrogation” in “its colloquial, rather than any technical legal sense.” Id. at 1365 n. 4.

The Crawford court stressed that whether or not a statement was sworn is not a determinative factor in finding a statement to be testimonial. Id. at 1365-66. A statement is more likely to be testimonial if the person who heard, recorded, and produced the out-of-court statement at trial is a government officer. Casual remarks to acquaintances are generally non-testimonial. If the person obtaining the statement is a governmental employee or police officer carrying out an investigation or prosecutional functions, the statement is “testimonial.” Id. at 1365.

Courts across the nation have been confronted with the grueling job of applying Crawford on a case-by-case basis to determine the full definition of “testimonial.” Texas courts like others had been accustomed to applying the governing test of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), where there was a confrontation challenge to the admissibility of out-of-court statements offered against the accused. In Roberts, the court discussed the confrontational issues raised by hearsay and set forth the following test:

In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

Id. at 66,100 S.Ct. 2531.

The requirement of unavailability in Roberts was subsequently limited to hearsay statements made in the course of a prior judicial proceeding. See White v. Illinois, 502 U.S. 346, 353-54, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). At least, after Roberts, the reliability of offered out-of-court statement was tested when a confrontation challenge was made. Reliability could be demonstrated by one of two means: by the presence of a firmly rooted hearsay exception or by the presence of particularized guarantee of trustworthiness, such that the adversarial testing would be expected to add little, if anything, to the statement’s reliability. Roberts, 448 U.S. at 66, 100 S.Ct. 2531; see also Lilly v. Virginia, 527 U.S. 116, 134, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999); Idaho v. Wright, 497 U.S. 805, 820-21, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); Lee v. Illinois, 476 U.S. 530, 545-46, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986); Muttoni, 25 S.W.3d at 304-06.

The Roberts decision acknowledged that the admission of hearsay against a criminal defendant implicates the Confrontation Clause. 448 U.S. at 63, 100 S.Ct. 2531. Under the Roberts standard, however, the hearsay was admissible against a defendant if it bore sufficient indicia of reliability. Id. at 66, 100 S.Ct. 2531. In fact, hearsay was deemed per se reliable if it fell within a firmly rooted exception to the hearsay rule such as an excited utterance. See White, 502 U.S. at 355 n. 8, 112 S.Ct. 736; Guidry v. State, 9 S.W.3d 133, 149 (Tex.Crim.App.1999).

Crawford abrogated Roberts and discarded the “adequate indicia of reliability” test insofar as it applied to “testimonial hearsay.” Crawford, 124 S.Ct. at 1370-73. “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Id. at 1374.

The core holding of Crawford is that the Confrontation Clause of the Sixth Amendment is a rule of procedure, not of evidence. “If there is one theme that emerges from Crawford, it is that the Confrontation Clause confers a powerful and fundamental right that is no longer subsumed by the evidentiary rules governing the admissibility of hearsay statements.” United States v. Cromer, 389 F.3d 662, 679 (6th Cir.2004). The constitutional requirement that a testimonial statement to be subject to cross-examination in criminal cases “does not evaporate when testimony happens to fall within some broad modern hearsay exception, even if the exception is sufficient in other circumstances.” Crawford, 124 S.Ct. at 1367 n. 7. A testimonial statement that meets the excited utterance exception test and cannot be excluded as hearsay, but this is irrelevant if the Confrontation Clause applies. Lopez v. State, 888 So.2d 693, 697 (Fla.App. 1st Dist.2004). Mere reliability is not enough to satisfy the Confrontation Clause where the extrajudicial statements are of a testimonial nature. United States v. Gonzalez-Marichal, 317 F.Supp.2d 1200 (S.D.Cal.2004).

In discussing testimonial and nontesti-monial hearsay, the Crawford court stated:

Where testimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the State flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.

124 S.Ct. at 1374.

Thus, under Crawford, the Sixth Amendment Confrontation Clause analysis will usually turn on the question of whether a particular statement is testimonial or nontestimonial in nature. The Roberts line of cases seem to be alive and well as to nontestimonial hearsay. Crawford strongly suggests but does not hold that the admissibility of nontestimonial hearsay is outside the scope of the Sixth Amendment. 124 S.Ct. at 1373-74.

The Texas Court of Criminal Appeals has only briefly addressed a Crawford issue. In Woods v. State, 152 S.W.3d 105, 113-114 (Tex.Crim.App.2004), the court found that a co-defendant’s casual “street corner” remarks to acquaintances were admissible as a declaration against penal interest exception to the hearsay rule, Tex.R. Evid. 803(24) and as to the confrontation issue, the remarks were nontestimo-nial in nature under the holding in Crawford.

In determining whether a particular out-of-court hearsay statement is testimonial or nontestimonial in the post-Crawford era, courts in Texas and other jurisdictions have reached conflicting decisions under the same or similar circumstances. Cf. Wall v. State, 143 S.W.3d 846, 851 (Tex. App.-Corpus Christi 2004, pet. filed) (victim’s statement to police shortly after assault testimonial), with Cassidy v. State, 149 S.W.3d 712, 716 (Tex.App.-Austin 2004, pet. ref'd) (victim’s statement to police at hospital shortly after assault nontestimonial). Key v. State, 173 S.W.3d 72 (No. 12-04A10030-CR), 2005 WL 467167, 2005 Tex. App. LEXIS 1573 (TexApp.-Tyler, Feb. 25, 2005, no pet.), held that the statements of the nontestifying victim of an assault made to responding officers at the scene were nontestimonial. Id., 173 S.W.3d at 75, 2005 WL 467167 at *2-3, 2005 TexApp. LEXIS 1573 at 6-7. Key cited a number of out-of-state cases to support its conclusion, as well as Gonzalez v. State, 155 S.W.3d 603 (Tex.App.-San Antonio 2004, pet. filed), and Davis v. State, No. 02-03-305-CR, 2005 WL 183141 (2005 Tex.App. LEXIS 712) (Tex.App.-Fort Worth 2005, no pet. h.). Key concluded that the hearsay statements there resulted from an unstructured interaction between the victim and the police that bore no resemblance to the examples of testimonial hearsay used in Crawford. 173 S.W.3d at 76-77, 2005 WL 467167, at *2, 2005 Tex.App. LEXIS 1573, at *4-5. However, Crawford made clear the examples given were not exclusive. Key did not end its reasoning there. Key supported its conclusion by finding that the excited utterance exception to the hearsay rule had been satisfied and, thus, as a matter of law, the statements were nontestimonial. Id.

Spencer v. State, 162 S.W.3d 877 (Tex. App.-Houston [14th Dist.] 2005), confronted a similar issue as in Key and reached the same conclusion. However, Spencer expressly disagreed with Key’s conclusion that all excited utterances are non-testimonial statements, 162 S.W.3d at 880.

In Wilson v. State, 151 S.W.3d 694, 696-98 (Tex.App.-Fort Worth 2004, pet. filed), the Court found the unstructured interaction between a nontestifying victim and police at the scene of a car wreck was nontestimonial. The court of appeals first independently reached this conclusion before discussing if the same statements were also admissible under the excited utterance exception to the hearsay rule. Tex.R. Evid. 803(2).

There are a number of cases contrary to Key. See Stancil v. United States, 866 A.2d 799, 809 (D.C. Ct.App.2005) (“Some excited utterances are testimonial, and others are not, depending on the circumstances.”); Lopez, 888 So.2d at 697 (statement to responding officer testimonial even though it was excited utterance); People v. Victors, 353 Ill.App.3d 801, 289 Ill.Dec. 154, 819 N.E.2d 311 (2004) (victim’s statements to police officer at scene testimonial under circumstances); Moody v. State, 277 Ga. 676, 594 S.E.2d 350 (2004) (victim’s statement to investigating officer at scene shortly after event testimonial); Lee v. State, 143 S.W.3d 565, 568-71 (Tex.App.-Dallas 2004, pet. filed) (nontestifying co-defendant’s out-of-court statements to police officers at scene of automobile stop testimonial); United States v. Nielsen, 371 F.3d 574 (9th Cir.2004) (statement by defendant’s girlfriend to an officer during execution of search warrant testimonial); People v. Ruiz, 2004 Cal.App. Unpub. LEXIS 9691, at *28 (Cal.App.2d Dist. Oct. 26, 2004) (unpublished) (statement to responding officer testimonial noting that police officers are trained to obtain statements for potential use in litigation when responding to potential domestic violence situations); People v. Sisavath, 118 Cal. App.4th 1396, 13 Cal.Rptr.3d 753 (2004) (alleged victim’s statement to responding officer testimonial). Significantly, the Supreme Court has vacated and remanded a case involving “excited utterances” to a police officer responding to the scene of a crime for further consideration in light of Crawford. Siler v. Ohio, — U.S. -, 125 S.Ct. 671, 160 L.Ed.2d 494 (2004), GVD’ing State v. Siler, 2003 Ohio 5749, 2003 WL 22429053, 2003 Ohio App. LEXIS 5091 (Ohio Ct.App. Oct. 24, 2003).

In Samarron v. State, 150 S.W.3d 701 (Tex.App.-San Antonio 2004, pet. filed), the witness to a murder made no statement at the scene but gave a written statement at the police station. The witness did not testify. His written statement was admitted as an “excited utterance.” The court of appeals held that the statement was “testimonial” and that it was offered in violation of the Confrontation Clause. Id. at 705-08. The error was not harmless. Id. at 708.

In Hammon v. State, 809 N.E.2d 945 (Ind.Ct.App.2004), the court found difficulty in characterizing any “excited utterance” exception to the hearsay rule as “testimonial” within the meaning of Crawford. The court stated:

We further note that the very concept of an “excited utterance” is such that it is difficult to perceive how such a statement could ever be “testimonial.” “The underlying rationale of the excited utterance exception is that such a declaration from one who has recently suffered an overpowering experience is likely to be truthful.” Hardiman v. State, 726 N.E.2d 1201, 1204 (Ind.2000). To be admissible, an excited utterance “must be unrehearsed and made while still under the stress of excitement from the startling event.” Id. “The heart of the inquiry is whether the declarants had the time for reflection and deliberation.” Id. An unrehearsed statement made without time for reflection or deliberation, as required to be an “excited utterance,” is not “testimonial” in that such a statement, by definition, has not been made in contemplation of its use in a trial. See Crawford, 124 S.Ct. at 1364.

Hammon, 809 N.E.2d at 952-53; see also Fowler v. State, 809 N.E.2d 960, 964 (Ind. Ct.App.2004), transfer granted, 2004 Ind. LEXIS 1030 (Ind. Dec. 9, 2004).

Other courts have rejected the Hammon-Fowler analysis as being more restrictive than contemplated by the Supreme Court in Crawford. See People v. Kilday, 20 Cal.Rptr.3d 161, 173 n. 9, 123 Cal.App.4th 406, 418, review granted, 23 Cal.Rptr.3d 693, 105 P.3d 114 (2005). In Lopez v. State, 888 So.2d at 699, the court disagreed with the Hammon-Fowler approach that excited utterances can never be testimonial. The court stated:

While this argument has some appeal at least on the surface, we do not think that excited utterances can be automatically excluded from the class of testimonial statements.
In our view, the findings necessary to support a conclusion that a statement was an excited utterance do not conflict with those that are necessary to support a conclusion that it was testimonial. A statement made in the excitement of a startling event is likely to be more reliable given the fact that the declarant had little time to make up a story. But, under Crawford, reliability has no bearing on the question of whether a statement was testimonial. Some testimonial statements are reliable and others are not.

After discussing cases involving statements by declarants to family members or friends, the Lopez court stated:

In contrast, a startled person who identifies a suspect in a statement made to a police officer at the scene of a crime surely knows that the statement is a form of accusation that will be used against the suspect. In this situation, the statement does not lose its character as a testimonial statement merely because the declarant was excited at the time it was made.
These principles lead us to conclude that the statement at issue was a testimonial statement. While it is true that Ruiz was nervous and speaking rapidly, he surely must have expected that the statement he made to Officer Gaston might be used in court against the defendant. He knew that Gaston was a policeman who was on the scene in an official capacity to investigate a reported crime. Even in his excitement, Ruiz knew that he was making a formal report of the incident and that his report would be used against the defendant.

Id. at 699-700.

The instant case was one of the domestic violence variety where the complainant did not testify. It has been estimated that between eighty and ninety percent of domestic violence complainants recant their accusations or refuse to cooperate with prosecutors. See Tom Lininger, Evidentiary Issues in Federal Prosecution of Violence Against Women, 36 Ind. L.Rev. 687, 709 n. 76 (2003). Thus, prosecutors try many domestic violence cases without the complainant’s testimony. They often rely upon evidence of excited utterances or other hearsay exceptions. Cf. People v. Moscat, 3 Misc.3d 739, 777 N.Y.S.2d 875, 878 (N.Y.Crim. Court 2004) (“because complainants in domestic violence cases often do not appear for trial, prosecutors have in recent years tried to fashion ‘victim less’ prosecutions”). The proper interpretation of Crawford can have a great impact upon trials in this area.

In the instant case, there can be little question from the facts that the complainant’s statements to Officer Cañi-zales shortly after the event were admissible under the “excited utterances” exception to the hearsay rule. See Tex.R. Evid. 803(2). The complainant Ford was crying, sobbing, and appeared hysterical at the time. But the fact that evidence is admissible under an excited utterance hearsay exception does not mean that it is ipso facto nontestimonial hearsay outside the scope of the Confrontation Clause and admissible into evidence. Each case must be examined on its facts to determine if the evidence is testimonial and controlled by Crawford.

Officers Cortez and Cañizales responded to a 911 call. When they arrived at the scene, they could easily be characterized as “responding officers.” How long did that label apply? The officers found appellant and Ford in a house from which they heard screams. Ford left the house at Cortez’s instructions. As she did, she stated to the officers: “[H]e tried to kill me,” a form of accusation and yet a plea for assistance. Appellant was taken into custody. It was determined the other man in the house had nothing to do with the assault. Ford had reached the porch of a neighbor’s house across the street. The scene was apparently secured. Officer Cortez related that Officer Cañizales went across the street to get Ford’s “side of the story.” Cañizales testified that his purpose in “interviewing” Ford was to determine what happened and who committed the assault. He further stated that the “story he got from her was the result of questioning.” At one point, however, he stated that he simply asked what happened and she told him. Had Cañizales at this point become an investigating officer at the scene? From the record, we know that at this time Cañizales took photographs of Ford which were introduced into evidence. Cañizales also made an offense report, as he was trained and required to make, that was used at trial to refresh his memory as to the details of what Ford told him. Frequent references during trial were made to page six of the offense report. Other employees of the police department were summoned to the scene as well as an ambulance — steps normally taken under similar circumstances, not only to assist the complainant but with an eye to potential prosecution.

The oral statements made by Ford to the uniformed Officer Cañizales identified appellant and then, in a series of accusations against appellant, detailed blow by blow the assault made upon her. Surely, a reasonable 51-year-old declarant like Ford would have known that her accusations made to a uniformed police officer would be passed on to prosecutorial authorities to be used against appellant. Ford’s statements may serve either or both of two primary objectives — to gain immediate official assistance in terminating an exigent situation and to provide information to aid investigation and possible prosecution arising from the situation. Merely because a declarant is excited, the statements made do not lose their character as testimonial statements subject to the Confrontation Clause.

In the instant case, it is difficult to draw a definitive line between testimonial and nontestimonial hearsay evidence developed in this pre-Crawford trial in order to reach the proper disposition of this appeal. We find that we do not have to do so.

Conclusion

If, in the instant case, the objected-to hearsay was nontestimonial, then no Confrontation Clause error is presented. If, on the other hand, the hearsay was testimonial, then Crawford applies, and constitutional error occurred. A Confrontation Clause violation is subject to a harmless error analyses. See Lilly v. Virginia, 527 U.S. 116, 140, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999); Coy v. Iowa, 487 U.S. 1012, 1021, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). We must reverse the conviction when Confrontation Clause error is presented unless we can determine beyond a reasonable doubt that the error did not contribute to the conviction. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Mendez v. State, 56 S.W.3d 880, 893 (Tex.App.Austin 2001, pet. ref'd); see also Tex. R.App. P. 44.2(a). In Shelby v. State, 819 S.W.2d 544, 547 (Tex.Crim.App.1991), the Texas Court of Criminal Appeals adopted the Supreme Court’s analysis in Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), for assessing harm in Confrontation Clause cases. See also Samarron, 150 S.W.3d at 707; de la Rosa v. State, 961 S.W.2d 495, 499 (Tex. App.-San Antonio 1997, no pet.) (applying Van Arsdall factors). The Van Arsdall analysis is a three-pronged test. First, the reviewing court must assume that the damaging potential of the cross-examination was fully realized. Second, with that assumption in mind, the court must review the error in connection with the following factors: the extent for cross-examination otherwise permitted; the importance of the witness’s testimony in the State’s case; whether the testimony was cumulative; the presence or absence of evidence corroborating or contradicting material points of the witness’s testimony; and the overall strength of the State’s case. Finally, in light of the first two prongs, the court determines if the error was harmless beyond a reasonable doubt. Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431; see also Shelby, 819 S.W.2d at 547; Samarron, 150 S.W.3d at 707.

In applying the Van Arsdall factors to the facts of the instant case, we find that the hearsay testimony involved was vital to the State’s case. Without it, the State could not have established the elements of the offense. However, appellant made a judicial confession corroborating much of the declarant’s statements to Officer Cañizales. Appellant confirmed the background evidence of his relationship with Ford, the declarant. He admitted that he started the shouting match and assaulted the declarant and acknowledged that he inflicted the injuries shown in a photograph of the declarant. While, appellant’s version of the assault did not exactly match that of the declarant as revealed by Officer Canizales’s testimony, the evidence clearly supported the general verdict of the jury.

If the complained-of hearsay was testimonial in nature, applying the Van Arsdall analyses, we conclude beyond a reasonable doubt that the error did not contribute to the conviction or punishment assessed. There is no reasonable likelihood that the error, if any, materially affected the jury’s deliberations. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App.2000).

Appellant’s sole point of error is overruled. The judgment is affirmed.

      . Appellant raises only a federal constitutional right of confrontation issue. He makes no claim of such right under article I, section 10 of the Texas Constitution in his brief. See Tex.R.App. P. 38.1(h). Thus, appellant has not claimed that the state constitution provides greater or different protection than the federal constitution. See Lagrone v. State, 942 S.W.2d 602, 613 (Tex.Crim.App.1997); Wall v. State, 143 S.W.3d 846, 849 (Tex.App.-Corpus Christi 2004, pet. filed); Halev. State, 139 S.W.3d 418, 421 (Tex.App.-Fort Worth 2004, no pet.). We will not address the state constitutional issue.

      . The purpose of confrontation is to ensure reliability by means of the oath, to expose the witness to cross-examination, and to permit the trier of fact to assess credibility. California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

      . By virtue of the nature of our inquiry, we are guided and bound by the decision and reasoning of the United States Supreme Court. U.S. Const, art. VI, cl. 2; see also McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 427, 4 L.Ed. 579 (1819); Guzman v.

        State, 85 S.W.3d 242, 258 n. 24 (Tex.Crim. App.2002).

      . The Supreme Court's retroactivity analysis is not an issue here as appellant Davis’s case is still on direct appeal. His conviction is not yet final. See Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); see generally, Beard v. Banks, 542 U.S. 406, 124 S.Ct. 2504, 2510, 159 L.Ed.2d 494 (2004).

      . The decision in White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), treating the hearsay exception for spontaneous declarations as a "firmly rooted” one for the purpose of applying the reliability test of Roberts [448 U.S. 56, 66, 100 S.Ct. 2531 (1980)] gave leeway to prosecutors and courts to try cases by introducing statements made in 911 calls and to responding officers (as evidence of the truth of the matter asserted), even if the declarant did not testify.

      . See Jahanian v. State, 145 S.W.3d 346, 350 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (finding that written statement given during police investigation after witness became suspect was testimonial); see also Gutierrez v. State, 150 S.W.3d 827, 830 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (holding videotaped statement testimonial).

      . It is not clear from the record whether Officer Cañizales took notes while talking to Ford.

      . The Van Arsdall factors in the second prong of the analyses were developed in light of the particular facts there presented. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Like factors in other contexts, the Van Arsdall factors do not always present a "one shoe fits all” analysis easily applied to every case.
      In Hale v. State, 139 S.W.3d 418, 422 (Tex. App.-Fort Worth 2004, pet. filed), the court recognized the Van Arsdall factors but did not apply them because there was no trial, only a guilty plea before the trial court. The Hale court reversed the aggravated sexual assault convictions in the light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), because the trial court erred in denying a motion to exclude the written testimonial statement of an accomplice who refused to testify at trial. After the pretrial ruling, appellant entered pleas of guilty. The Court of Appeals could not determine beyond a reasonable doubt from the record before it that the pretrial ruling did not contribute to the guilty pleas and the resulting convictions. The causes were reversed and remanded. Id. at 422.
      In Scott v. State, 165 S.W.3d 27 (Tex.App.Austin 2005), a capital murder case, this Court found the trial court erred in admitting the written testimonial statement of a non-testifying co-defendant over a Confrontation Clause objection. The majority found the error harmless in an analysis under Rule 44.2(a) of the Texas Rules of Appellate Procedure (incorporating the holding in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)), and the factors set forth in Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim.App.1989); Scott, 165 S.W.3d at 47-54. There was no reliance upon Van Arsdall.


source: Caselaw Access Project

author: BOB McCOY, Justice. LEE ANN DAUPHINOT, Justice,

license: Public Domain

text:
    Byron DAVIS, Appellant v. The STATE of Texas, State.
    No. 02-04-064-CR.
    Court of Appeals of Texas, Fort Worth.
    June 2, 2005.

      Law Office of James M. Stanley and Barry G. Johnson, Fort Worth, for Appellant.
    Tim Curry, Crim. Dist. Atty., Charles M. Mallín, Asst. Crim. Dist. Atty. and Chief of the Appellate Section, Steven W. Conder, Shane Lewis, and Rebecca Mcln-tire, Asst. Crim. Dist. Attys., Fort Worth, for Appellee.
    PANEL A: CAYCE, C.J.; DAUPHINOT and McCOY, JJ.
   MEMORANDUM OPINION

BOB McCOY, Justice.

I. Introduction

Appellant Byron Davis appeals from his conviction for aggravated robbery with a deadly weapon. In one issue, Davis challenges the admissibility of testimony regarding anonymous tips received by police. Because we hold that the trial court did not abuse its discretion in admitting the objected-to testimony, we will affirm.

II. Background Facts and Procedural History

On December 17, 2002, Loi Quoc Tran was working at the family-owned Corma Food Store when he was robbed at gunpoint. At trial, Fort Worth police officer Linda Wennig testified about the investigation of the robbery. Officer Wennig testified that police had no suspects in the robbery so they released a video tape of the robbery to the local media in an effort to identify the individual responsible. Officer Wennig testified that police received several anonymous tips identifying Davis as the perpetrator. She testified that after Davis was identified as a suspect in the robbery, she obtained a photo of Davis, prepared a photo spread, and showed the photo spread to Tran. Officer Wennig testified that Tran identified Davis as the perpetrator from the photo spread. Davis was charged with aggravated robbery with a deadly weapon, to which he pleaded not guilty. The jury found Davis guilty and the trial judge sentenced him to thirty years’ imprisonment. This appeal followed.

III. Hearsay

In his sole issue on appeal, Davis contends that the trial court erred in permitting testimony by Detective Wennig regarding the anonymous tips received by police identifying him as the perpetrator. Davis argues that Wennig’s testimony was hearsay and that the admission of her testimony violated the Texas Rules of Evidence and his Sixth Amendment right of confrontation. See U.S. Const, amend. VI; Tex.R. Evid. 802. The State responds that the testimony was properly admitted by the trial court because the testimony was offered to show why the investigation focused on Davis, not for the truth of the matter asserted, that is, that Davis was guilty of the robbery.

A. Standard of Review

We review the trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997); Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex.Crim.App.1990). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action; rather, it is a question of whether the court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse. Montgomery, 810 S.W.2d at 391. We will not reverse a trial court’s ruling on the admission of evidence as long as the ruling is within the zone of reasonable disagreement. Id.

B. Analysis

The Texas Rules of Evidence prohibit the admission of hearsay evidence except as provided by statute or other rules prescribed pursuant to statutory authority. See Tex.R. Evid. 802. “Hearsay” is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Tex.R. Evid. 801(d). Thus, a statement not offered to prove the truth of the matter asserted is not hearsay. Dinkins v. State, 894 S.W.2d 330, 347-48 (Tex. Crim.App.), cert. denied, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995). In that regard, the Texas Court of Criminal Appeals has held that statements offered for the purpose of explaining how a defendant became a suspect and not for the truth of the matter asserted are not hearsay. See Jones v. State, 843 S.W.2d 487, 499 (Tex. Crim.App.1992) (holding testimony of officer explaining how officer came to suspect appellant was not objectionable as hearsay because it was “not offered to prove the truth of the matter asserted, but to show why the officer got an arrest warrant for and arrested appellant”), cert. denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993); see also Dinkins, 894 S.W.2d at 347 (indicating appointment book and patient application form were not hearsay when “tendered ... to show how appellant became a suspect in the investigation,” not for the truth of the matter asserted). Thus, a police officer may testify about anonymous tips received for the purpose of showing why the investigation focused on a particular defendant. Cano v. State, 3 S.W.3d 99, 110 (Tex.App.-Corpus Christi 1999, pet. ref'd); Levarlo v. State, 964 S.W.2d 290, 296 (Tex.App.-El Paso 1997, no pet.). This is because the testimony assists the jury’s understanding of the events by providing context for the police officer’s actions. See Cano, 3 S.W.3d at 110.

Davis initially argues that we should not allow the jury to hear testimony regarding anonymous tips for the purpose of putting the investigation into context. He argues that doing so allows unsworn out-of-court statements to come before the jury while denying the accused the opportunity to cross-examine the witness. Davis proposes that we limit testimony for this purpose to situations where the defendant challenges the investigation as being motivated by vendetta or grudge. We decline to do so. Testimony not offered for the truth of the matter asserted is not hearsay. See Tex.R. Evm 801(d); Dinkins, 894 S.W.2d at 347; Jones, 843 S.W.2d at 499; Cano, 3 S.W.3d at 110; Levario, 964 S.W.2d at 296.

Davis next argues that the disputed testimony was inadmissible because it was offered by the prosecutor for the purpose of proving that Davis committed the charged robbery, not just to put the investigation in context. Citing Schaffer v. State, Davis points out that the Texas Court of Criminal Appeals had held that “where there is an inescapable conclusion that a piece of evidence is being offered to prove statements made outside the courtroom, a party may not circumvent the hearsay prohibition through artful questioning designed to elicit hearsay indirectly.” See 777 S.W.2d 111, 114 (Tex.Crim. App.1989). In that regard, Davis argues that while it appears that the State’s question may have been to put the investigation in context, the “practical intent of the testimony” was to elicit testimony indicating that “several callers identified Mr. Davis as the actor in the video.” Davis points out that the State could have put the investigation into context by asking the question in such a way as to elicit a court-approved “neutral language response.” As further support, Davis directs our attention to Benjamin v. State, an unpublished opinion out of the Houston Court of Appeals. See Benjamin v. State, Nos. 14-98-01126-CR, 14-98-01127-CR, 2001 WL 726426 (Tex.App.-Houston [14th Dist.] June 28, 2001, no pet.) (not designated for publication). In Benjamin, the Houston Court of Appeals upheld the trial court’s admission of testimony from a police office similar to the testimony in the case at bar; however, Davis points out that in doing so the court noted that there was “no other mention of the tip in testimony or argument.” See id. at *2. Davis asserts that unlike Benjamin, where the testimony was not mentioned again by the State, the prosecutor here emphasized and highlighted the testimony regarding the anonymous tips in its closing argument. See id. He argues that the State’s emphasizing and highlighting of this testimony is the best indicator that the State’s use of the testimony was improper.

In Head v. State, the Texas Court of Criminal Appeals indicated that “the reviewing court should limit itself to the state of the evidence at the time the trial court was called upon to make a ruling on admissibility.” 4 S.W.3d 258, 262 n. 5 (Tex.Crim.App.1999). Thus, considering only the evidence before the court at the time the court was requested to rule on the admissibility of Detective Wennig’s testimony, we are not inescapably drawn to conclude that the State offered the testimony for the purpose of proving the truth of statements made outside the courtroom. See Schaffer, 111 S.W.2d at 114. To the contrary, our review of the evidence leads us to conclude that the State elicited the objected to testimony for the purpose of establishing how Davis was developed as a suspect. Accordingly, we hold that the trial court did not abuse its discretion when it allowed the objected-to testimony. We overrule Davis’s sole issue.

IV. Conclusion

Having overruled Davis’s sole issue, we affirm the trial court’s judgment.

DAUPHINOT, J. filed a concurring and dissenting opinion.

LEE ANN DAUPHINOT, Justice,

concurring and dissenting.

Because I agree with the result that the majority reached but disagree with their analysis, I respectfully write separately.

The majority’s analysis turns on their position that, because the State offered the testimony for the purpose of establishing how Appellant became a suspect and not for the truth of the matter asserted, the testimony was admitted for a limited purpose. The majority takes this position despite the fact that no limiting instruction was given. The law is well settled that evidence admitted without any limiting instruction is admitted for all purposes. No matter how limited the State’s offer, the testimony is in the record for all purposes, including the truth of the matter asserted.

Because the majority confuses the limited offer of the evidence with a limited admission of evidence, I respectfully dissent. Because Appellant faded to request the limiting instruction, I concur in the result the majority reaches in their thoughtful opinion.

      . See TexR.App. P. 47.4.

      . See Tex.R. Evid. 105(a); Hammock v. State, 46 S.W.3d 889, 895 (Tex.Crim.App.2001) (“As we previously stated, however, K.H.’s testimony was admitted for all purposes because appellant failed to request a limiting instruction when the evidence was admitted.”); Garcia v. State, 887 S.W.2d 862, 878 (Tex.Crim. App.1994) ("Appellant further ignores that once evidence is received without a proper limiting instruction, it becomes part of the general evidence in the case and may be used as proof to the full extent of its rational persuasive power.”), cert. denied, 514 U.S. 1021, 115 S.Ct. 1368, 131 L.Ed.2d 223 (1995).

      . See Ex parte Varelas, 45 S.W.3d 627, 635 (Tex.Crim.App.2001) ("Additionally, without the limiting instructions, it is probable that the jury considered the extraneous acts as direct evidence of applicant’s guilt, i.e., propensity evidence, rather than for the purposes in which they were offered, which was limited to the applicant's state of mind, intent, relationship, motive and to rebut defensive issues.”); McCullough v. State, 116 S.W.3d 86, 94 (Tex.App.-Houston [14th Dist.] 2001, pet. ref d) ("In certain instances, evidence may be offered for a limited purpose. However, for that limitation to be effective the admission of the evidence must be accompanied by a limiting instruction.”).


author: Justice WRIGHT.

text:
    In the Interest of N.P.T. and S.E.T.
    No. 05-04-00746-CV.
    Court of Appeals of Texas, Dallas.
    June 13, 2005.
    Rehearing Overruled Aug. 31, 2005.

      Todd W. "White, The White Law Firm, Rockwall, for Appellant.
    David E. Rohlf, Rockwall, for Appellee.
    Before Justices WRIGHT, BRIDGES, and FITZGERALD.
   OPINION

Opinion by

Justice WRIGHT.

Appellant appeals the termination of his parental rights to N.P.T. and S.E.T. In three issues, appellant contends the trial court erred by terminating his parental rights because (1) mother’s bankruptcy automatically stayed all proceedings; (2) his affidavit of relinquishment of parental rights was not voluntarily made; and (3) his due process rights were violated when he did not receive notice of the termination hearing. We overrule appellant’s issues and affirm the trial court’s judgment.

Factual and Procedural Background

While appellant’s and mother’s divorce was pending, appellant was tried for one count of possession of child pornography and two counts of indecency with a child. During that trial, he entered into plea bargain agreements in exchange for his guilty pleas. As a condition of the plea bargain agreements, appellant executed an affidavit of relinquishment of his parental rights to N.P.T. and S.E.T. Mother subsequently amended her divorce petition seeking to terminate appellant’s parental rights pursuant to the affidavit of relinquishment. A few days later, mother filed a petition for bankruptcy. The same day, the trial court granted her motion for severance on the termination issue. Three days later, the trial court granted mother’s motion to terminate. This appeal followed.

Discussion

In his first issue, appellant contends the termination proceeding was automatically stayed when mother filed her petition for bankruptcy and, thus, any actions (including the severance order and subsequent termination proceeding) taken after that time are void. We disagree. When a defendant files a bankruptcy petition, an automatic stay goes into effect and abates any judicial proceeding against that party. See 11 U.S.C. 362(a) (West 2004); In re S.W. Bell Tel. Co., 35 S.W.3d 602, 604 (Tex.2000). The purpose of the stay is twofold. First, it provides protection by giving the debtor a “breathing spell” from creditors and granting time to repay or reorganize. Second, the stay protects the creditor. Bamburg v. Townsend, 35 S.W.3d 85, 89 (Tex.App.-Texarkana 2000, no pet.). Therefore, the stay generally operates against only the debtor, and does not operate against non-debtors or even co-debtors, co-tortfeasors, or co-defendants. See S.W. Bell, 35 S.W.3d at 604; Bamburg, 35 S.W.3d at 89.

Here, mother filed for bankruptcy, thereby staying all judicial proceedings against her. Appellant has not shown how proceeding with the termination of his parental rights in any way violates the purposes of the stay, or how any of the exceptions to the general rule that the stay operates against only the debtor apply. See generally Bamburg, 35 S.W.3d at 89-90 (discussing exceptions to this general rule). Thus, we cannot conclude the automatic stay affected the termination proceeding against appellant. We overrule appellant’s first issue.

In his second issue, appellant contends he involuntarily executed the affidavit of relinquishment of parental rights. After reviewing the record, we cannot agree.

Traditionally, once an affidavit has been shown to comply with the requirements of section 161.103(b) of the Texas Family Code, courts of appeals have reviewed challenges to the voluntariness of an affidavit of relinquishment to determine if the party challenging the affidavit established, by a preponderance of the evidence, that the affidavit was executed as a result of fraud, duress, or coercion. See, e.g., In re D.R.L.M., 84 S.W.3d 281, 296-298 (Tex. App.-Fort Worth 2002, pet. denied); Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.-Austin 2000), pet. denied, 53 S.W.3d 684 (Tex.2001); Coleman v. Smallwood, 800 S.W.2d 353, 356 (Tex.App.-El Paso 1990, no writ). Recently, in In re L.M.I., 119 S.W.3d 707 (Tex.2003), cert. denied, 541 U.S. 1043, 124 S.Ct. 2175, 158 L.Ed.2d 733 (2004) three justices, in concurring and dissenting opinions, suggested that placing the burden on the parents to set aside the affidavit “may run afoul of constitutional and statutory mandates for the burden of proof and quantum of evidence necessary to terminate parental rights” and the standard of review when the basis for termination is an affidavit of relinquishment should be to look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that the affidavit of relinquishment was executed voluntarily. See id. at 715-16 (Wainwright, J., concurring); id. at 716 (Owen, J., concurring and dissenting); id. at 739 (Heeht, J., dissenting). While there is considerable merit in applying the standard of review suggested in the concurring and dissenting opinions in L.M.I., we need not expressly decide that issue today because under either standard, the result remains the same — the evidence supports the trial court’s determination that appellant voluntarily executed the affidavit. Thus, should it decide to do so, we leave for the supreme court the task of reformulating the standard of review in these cases.

At the motion for new trial hearing, Brian Blessing testified that he, along with co-counsel, represented appellant in his criminal trial. A jury had been seated, and the State was in the process of introducing certain documents in the child pornography case. During a break in the trial, appellant initiated plea negotiations with the State. The State made an offer that appellant accepted. However, after speaking with the children’s mother, the State added the requirement that appellant relinquish his parental rights to the children. Although the break was scheduled to be for fifteen minutes, the trial judge was “lenient in extending that period of time, ... but ... it was a compressed and packed pressure-type situation.” Blessing thought appellant had at least forty-five minutes, and it could have taken longer than an hour to decide about the plea agreement. After the affidavit was prepared, appellant had “about 15 minutes” to decide whether to execute the affidavit. During the plea negotiations, appellant had the assistance of two attorneys, his sister, and Blessing’s legal assistant. Counsel advised appellant that his motion to suppress would likely not be granted and he was “looking at a great deal” of penitentiary time.

On cross-examination, Blessing admitted that he read, along with appellant, the affidavit. As he read through the affidavit, appellant made handwritten changes, including a change of address, and added that appellant wanted to be mailed or given a copy and wanted to be notified of the signing of a judgment. After signing the affidavit, appellant and counsel went into the judge’s chambers where the judge looked at the documents and asked appellant if he understood what he had signed. According to Blessing, he advised appellant to execute the affidavit because he “felt the plea offer was going to save his life, freedom.”

Appellant testified that he did not sign the affidavit voluntarily because he was “rushed” and at the time he was trying to consider the document, “the courtroom was just a boilermaker.” After being advised by his attorney, appellant felt his choices were either to “sign the thing or go to prison.” At the time he signed the document, he had been in trial for two days, and things were not “going [his] way.” On cross-examination, appellant admitted he reads and writes the English language and that he read the document and swore it was being executed voluntarily. After reviewing the document, appellant made changes to the affidavit. He also admitted that, at the time he signed the document, the guilt/innocence portion of his trial was not completed and he could have chosen to continue with the jury trial. According to appellant, he voluntarily entered into the plea agreement but contends he “was not of sound mind” with respect to the affidavit of relinquishment.

Janna R. testified that her son was the complaining witness in one of the indecency with a child cases. According to Janna R., she and mother were presented with a plea agreement the night before appellant signed the affidavit. They initially agreed, but the next morning, both she and the children’s mother decided the trial should continue because appellant should “pay for what he did.” Janna R. and mother thought the children should testify and “have everything over and done with so [mother] and her children could leave and get on with their lives.” The prosecutor then inquired about Janna R. and mother agreeing with the plea bargain if appellant relinquished his parental rights. Both Janna R. and mother then agreed to the plea bargain. Later that morning, Janna R. spoke with appellant who told her he “loved his kids and that he gave them up because he didn’t want them to have to testify against him ... [and] because he did not want to go to jail.”

Although appellant contends that mother “seemingly used the criminal prosecution to gain the ultimate leverage in her divorce proceeding and obtained [appellant’s] signature on the affidavit of relinquishment at, for all intents and purposes, the point of a gun,” we cannot agree. The record shows that the affidavit of relinquishment was the prosecutor’s solution to resolve mother’s concerns about the plea bargain agreement. We recognize appellant may have been under pressure to make a decision; however, the record also shows he was represented by counsel, was well aware of the document he was signing, and understood its consequences. Contrary to appellant’s suggestion, being faced with an unfavorable jury decision does not automatically warrant a finding that the affidavit of relinquishment was wrongfully procured. See Mosley v. Dallas County Child Protective Servs. Unit of the Tex. Dep’t of Protective and Regulatory Serv., 110 S.W.3d 658, 664 (Tex.App.Dallas 2003, pet. denied). Nor can we conclude that because a trial court is not bound to accept the terms of a plea bargain agreement, the affidavit must be found involuntary because it was given in exchange for an “empty promise” such as in Queen v. Goeddertz, 48 S.W.3d 928, 932 (Tex.App.-Beaumont 2001, no pet.), or Vela, 17 S.W.3d at 759. In those cases, the affidavits of relinquishment were secured without the advice of counsel and in exchange for promises of a continuing relationship with the child. See Queen, 48 S.W.3d at 931; Vela, 17 S.W.3d at 760. Here, there was no such promise. That the trial judge was not bound to accept the terms of the plea bargain agreement is not the same as a promise that is, on its face, unenforceable. Once the trial court accepted the terms of the plea bargain, the terms of appellant’s plea bargain became enforceable. See Ortiz v. State, 933 S.W.2d 102, 105 (Tex.Crim.App.1996) (plea agreement is binding, contractual arrangement once all necessary parties agree to terms). In contrast, the promises at issue in Queen and Vela were unenforceable as a matter of law. See Queen, 48 S.W.3d at 932; Vela, 17 S.W.3d at 762. In making this determination, we are not holding that an affidavit of relinquishment procured in exchange for a plea bargain could never be found to have been the result of duress or coercion. However, under the particular facts and circumstances in this case, we cannot conclude the affidavit in this case was wrongfully procured or that appellant did not understand the terms and consequences of the affidavit. Thus, we conclude appellant knowingly and voluntarily executed the affidavit of relinquishment. We overrule appellant’s second issue. Because appellant’s third issue is premised on a finding that the waiver of his right to notice in the affidavit of relinquishment cannot be enforced because it was involuntarily executed, we likewise overrule appellant’s third issue.

Accordingly, we affirm the trial court’s judgment.


author: JAMES T. WORTHEN, Chief Justice.

text:
    Tom CLAYTON, M.D., a/k/a Charles T. Clayton, M.D. a/k/a Thomas M. Clayton, Appellant, v. Susan WISENER, Appellee.
    No. 12-03-00344-CV.
    Court of Appeals of Texas, Tyler.
    June 15, 2005.

      Stephen P. Carrigan, Sydow, Kormanik, Carrigan & Eckerson, L.L.P., Houston, for appellant.
    Dennis M. Dylewski, Dylewski & Douglas, Houston, for appellee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

The trial court granted Susan Wisener’s application for a turnover order to aid in the enforcement of a judgment entered against Tom Clayton, M.D. In six issues, Dr. Clayton appeals this turnover order. We reverse the trial court’s turnover order and vacate the order in its entirety.

Background

Wisener recovered a judgment against Dr. Clayton for $91,488.00 in actual damages and $200,000.00 in exemplary damages. Wisener subsequently filed a motion for a turnover order to aid her in the collection of the judgment from Dr. Clayton. See Tex. Civ. PRAC. & Rem.Code Ann. § 31.002 (Vernon Supp .2004-05). In this motion, she listed assets owned by Dr. Clayton that she believed to be nonexempt from attachment, execution, or seizure. Dr. Clayton argued that all of his assets were exempt property. As part of his response to Wisener’s motion, he filed his verified responses to Wisener’s post-judgment interrogatories and an affidavit stating that all of his assets were exempt property. At the hearing on her turnover motion, Wisener presented argument to the court as to why her motion should be granted but presented no evidence in support of the motion. The court then entered a turnover order against Dr. Clayton that listed the assets Wisener claimed were nonexempt. This appeal followed.

Did The Trial Court Abuse Its Discretion By Entering The Order?

In his first three issues, Dr. Clayton contends that the trial court abused its discretion by entering the turnover order without any evidence in the record supporting the finding that Dr. Clayton had any nonexempt property. We agree. Standard of Review

The issuance of a turnover order is reviewed under an abuse of discretion standard. Beaumont Bank, N.A. v. Bullet, 806 S.W.2d 223, 226 (Tex.1991). A trial court may be reversed for abusing its discretion only when the court of appeals finds the court acted in an unreasonable or arbitrary manner or that it acted without reference to any guiding rules and principles. Id. Whether there is evidence to support the turnover order is a relevant consideration in determining if the trial court abused its discretionary authority in issuing the order. Id. A trial court abuses its discretion by entering a turnover order if there is no evidence of a substantive and probative character that supports the trial court’s decision. Bums v. Miller, Hiersche, Martens & Hayward, P.C., 948 S.W.2d 317, 324 (Tex.App.Dallas 1997, pet. denied).

Law and Analysis

A turnover order is a discretionary remedy that, if granted by the trial court, allows a judgment creditor access to the debtor’s property to satisfy the judgment. Tex. Civ. Prac. & ReM.Code Ann. § 31.002. The creditor must show the trial court that 1) the debtor owns the property, 2) the property cannot be readily attached, and 3) the property is not exempt. Id. A factual showing that the judgment debtor has nonexempt property that is not readily subject to ordinary execution is of particular importance in applying section 31.002. See Schultz v. Fifth Judicial Dist. Court of Appeals at Dallas, 810 S.W.2d 738, 740 (Tex.1991). Upon proof of the necessary facts, section 31.002 authorizes the trial court to order affirmative action by the judgment debtor and others to assist the judgment creditor in subjecting such nonexempt property to satisfaction of the underlying judgment. Id.

In this case, Wisener presented no evidence, either oral or written, to the court in support of her turnover motion. She presented only the motion and argument to the court. Motions and arguments of counsel are not evidence. Elkins v. Stotts-Brown, 103 S.W.3d 664, 669 (Tex. App.-Dallas 2003, no pet.). However, Wis-ener contends that there was no need for her to present evidence in support of her turnover motion based upon our holding in Sivley v. Sivley, 972 S.W.2d 850 (Tex.App.Tyler 1998, no pet.). This is an incorrect reading of that case.

The record in Sivley shows that a motion for a turnover order under section 31.002 was filed with the trial court on April 4, 1997 and was granted the same day without a hearing. Id. at 859. The record in Sivley also shows the trial court had already heard evidence on all of the facts supporting its turnover order during three previous hearings in the calendar year of 1996 (June 14, October 11, and November 22). Id. at 862. Therefore, the trial court did not abuse its discretion by entering the turnover order in Sivley because evidence had been properly admitted during those hearings before the entry of the turnover order on April 4, 1997. In the instant case, Wisener never presented any evidence regarding the nonexempt assets owned by Dr. Clayton as required by section 31.002 of the Texas Civil Practice and Remedies Code. Consequently, the turnover order in Sivley is distinguishable from the order in the instant case.

Wisener further contends that even though she did not present evidence at her hearing on the turnover motion, the discovery responses and affidavit regarding his exempt assets that Dr. Clayton filed as part of his response to her motion are sufficient evidence to allow the turnover order to pass muster. Again, we disagree. Both of these documents were evidence of exempt assets, not nonexempt assets. Section 31.002 requires that evidence of nonexempt assets be admitted into evidence before the trial court can enter a turnover order. See Schultz, 810 S.W.2d at 740 (a factual showing that the judgment creditor has nonexempt property is required). Accordingly, we hold that the trial court abused its discretion in entering the turnover order based on section 31.002 without any evidence to support the order. Dr. Clayton’s issues one, two, and three are sustained.

Conclusion

Because our determination of Dr. Clayton’s first three issues are dispositive of this appeal, we do not need to address his fourth, fifth, and sixth issues. Having sustained Dr. Clayton’s first three issues, we reverse the trial court’s turnover order and vacate the order in its entirety.