Doss v. State
| Docket Number | 12-23-00092-CR |
| Decision Date | 20 December 2023 |
| Parties | BILLY REX DOSS, APPELLANT v. THE STATE OF TEXAS, APPELLEE |
| Court | Texas Court of Appeals |
DO NOT PUBLISH
Appeal from the 159th District Court of Angelina County, Texas (Tr.Ct.No. 2020-0072)
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
GREG NEELEY JUSTICE.
Billy Rex Doss appeals his conviction for delivery of between one and four grams of methamphetamine. Appellant raises six issues on appeal. We affirm.
Appellant was charged by indictment with delivery of between one and four grams of methamphetamine. The indictment further alleged that Appellant previously was convicted of felony-possession of a controlled substance. Appellant pleaded "not guilty," and the matter proceeded to a jury trial. At trial, the State presented evidence obtained in cooperation with a confidential informant, who is depicted in a muted video making a controlled drug-buy from Appellant. That informant was deceased by the time Appellant's case went to trial.
Ultimately the jury found Appellant "guilty" as charged, and the matter proceeded to a bench trial on punishment. Following the presentation of evidence, the trial court found the enhancement allegation to be "true" and sentenced Appellant to imprisonment for forty-nine years. This appeal followed.
In his first issue, Appellant argues that the trial court erred by admitting State's Exhibits 1, 2, and 5-14, which consist of the videos (unmuted and muted) from the confidential informant, photographs from the video, the evidence envelope a plastic baggie containing the methamphetamine obtained from the confidential informant, the lab report related to the contents of the plastic baggie, and the lab submission report of the contents from the plastic baggie, because it did so in violation of Appellant's confrontation rights. In his second issue, Appellant argues that the trial court erred by admitting narrative descriptions of the video "from the confidential informant" in violation of his confrontation rights.
Ordinarily we review a trial court's decision to admit evidence under an abuse of discretion standard. See Robisheaux v State, 483 S.W.3d 205, 217 (Tex. App.-Austin 2016, pet. ref'd). However, constitutional rulings, such as the determination of whether a statement is testimonial or non-testimonial under the confrontation clause, are reviewed de novo. See Watson v. State, 421 S.W.3d 186, 195 (Tex. App.-San Antonio 2013, pet. ref'd).
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him[.]" U.S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400, 400-01, 85 S.Ct. 1065, 1066, 13 L.Ed.2d 923 (1965). The Confrontation Clause and cross examination are designed, at least in part, to ensure both fairness in criminal proceedings and the reliability of evidence offered before the fact finder. See Lilly v. Virginia, 527 U.S. 116, 123-24, 119 S.Ct. 1887, 1894, 144 L.Ed.2d 117 (1999). Cross examination provides an avenue to test the believability of a witness and the truth of that witness's testimony. See Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974).
The Confrontation Clause is designed to guard against the presentation of testimonial and out-of-court statements made by an absent witness. Watson, 421 S.W.3d at 195. At the heart of the issue is a defendant's inability to utilize the safeguards of cross examination to ensure and test the witness's credibility. Id. An appellate court weighs each Confrontation Clause issue on a case-by-case basis, balancing the State's right to present evidence with the defendant's right to cross-examine and the risk factors associated with admission of the evidence. Id. at 195-96 (citing Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000)).
In Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 1369, 158 L.Ed.2d 177 (2004), the Supreme Court held that the Confrontation Clause bars the admission of an out-of-court testimonial statement made by a non-testifying witness absent evidence that (1) the witness is unavailable to testify and (2) "the defendant has had a prior opportunity to cross-examine" the witness. In the instant case, the key issue is whether the muted video and other exhibits were testimonial.[1]
In determining whether a statement is testimonial, an appellate court looks to "the formal nature of the interaction, the intent of the declarant, or some combination of the two factors." Moore v. State, 169 S.W.3d 467, 471 (Tex. App.-Texarkana 2005, pet. ref'd). The Confrontation Clause is more a procedural guarantee than a substantive one. Crawford, 541 U.S. at 61, 124 S.Ct. at 1370. Thus, if the proposed testimony is the functional equivalent of an ex parte, in-court statement, the statement is testimonial. Watson, 421 S.W.3d at 196. Statements are testimonial when the circumstances objectively indicate that there is no ongoing emergency and the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Id.
In Watson, the appellant argued that the trial court erred by admitting a silent video recording from a device worn by a confidential informant in violation of his confrontation rights. See id. at 195. In analyzing the issue, the court observed that the silent video did not amount to the same situation as structured police questioning. See id. at 197. Moreover, the court determined that the setting of a confidential informant's purchasing contraband is not one which would lead an objective witness reasonably to believe that the statement would be available for later judicial proceedings. See id. In reaching its conclusion that a silent video recording neither was a statement nor was it testimonial and, therefore, not violative of the appellant's confrontation rights, the court noted that the silent video recording is more akin to a surveillance video than to a testimonial statement by an individual, particularly in light of the court of criminal appeals' determination that "a silent [video recording] is no different than a collection of photographs[.]" Id. (quoting Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988)).
In Poulos v. State, 799 S.W.2d 769 (Tex. App.-Houston [1st Dist.] 1990, no pet.), the appellant was stopped for suspected driving under the influence, and the officer requested that she perform several field-sobriety tests. Id. at 770. During trial, she argued that the silent video recording of the stop amounted to a custodial interrogation and, therefore, violated her federal and state constitutional protections against self-incrimination. Id. at 770-71. Relying on the court of criminal appeals' decision in Miffleton v. State, 777 S.W.2d 76 (Tex. Crim. App. 1989), the court held the images of the appellant captured on the silent video recording were not testimonial in nature and, therefore, did not offend the Fifth Amendment privilege against self-incrimination. See Poulos, 799 S.W.2d at 771.
In the instant case, the video depicts the informant, who is given the hidden camera, a view of the interior of her car as she drives to Appellant's residence, her interaction with Appellant, who can be seen handing her a small baggie and to whom she hands money, another view from the front seat of her car in which the baggie, which contains a white substance, is visible, and the officer's retrieval of the hidden camera, which he focuses on the baggie where it rests in the front seat of the informant's car. Based on our review of the muted video comprising Exhibit 2, we conclude that it is not a statement, does not involve police questioning, nor does it depict a setting which would lead an objective witness reasonably to believe that it would be available for later judicial proceedings. See Watson, 421 S.W.3d at 197. It only depicts Appellant's appearance and actions. Therefore, it was not testimonial. See id. Exhibits 5-11 consist of photographs taken from the video. Thus, they are no more testimonial in nature than the muted video from which they were derived.[2] Accordingly, we hold that the trial court did not err in admitting Exhibits 2 and 5-14 in the face of Appellant's objection that doing so violated his rights under the Confrontation Clause. Appellant's first issue is overruled.
Appellant further argues that the trial court erred by admitting narrative descriptions of the video "from the confidential informant" in violation of his confrontation rights. However, it is apparent that Appellant is referring not to any narrative testimony from the confidential informant but rather to testimony offered by Angelina County Sheriff's Office Lieutenant Wesley Waggonner about the video after it was published to the jury. Appellant does not point out which portions of Waggonner's testimony are the subject of his second issue. But since Waggonner was available for and was, in fact, subjected to cross-examination, we hold that the Confrontation Clause was satisfied. See Coronado v. State, 351 S.W.3d 315, 339 (Tex. Crim. App. 2011). Appellant's second issue is overruled.
In his third issue, Appellant argues that the trial court abused its discretion by admitting Exhibits 1, 2, and 5-14 in violation of the hearsay rule.[3]
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Martinez v State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Abuse of discretion occurs only if the decision is "so clearly wrong as to lie outside the...
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