Gonzalez v. State

• Decision Date: 21 June 2006
• Docket Number: No. PD-0247-05.,PD-0247-05.
• Citation: 195 S.W.3d 114
• Parties: Ray GONZALEZ, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 114

195 S.W.3d 114

Ray GONZALEZ, Appellant, v. The STATE of Texas.

No. PD-0247-05.

Court of Criminal Appeals of Texas.

June 21, 2006.

Julie B. Pollock, San Antonio, for Appellant.

Enrico B. Valdez, Assistant District Atty., San Antonio, Matthew Paul, State's Atty., Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court, in which KELLER, P.J., MEYERS, PRICE, WOMACK, KEASLER, HERVEY, and HOLCOMB, JJ., joined.

The question presented in this case of first impression is whether appellant forfeited, by his own misconduct of fatally shooting Maria Herrera during a robbery or the burglary of her home, his right to confront Maria in court about hearsay statements she made before she died.¹ We find that he did, and we therefore affirm the judgment of the court of appeals which held the same.²

I.

San Antonio police officers, responding to 911 calls, arrived at Maria and Baldomero Herrera's home shortly after 6:00 p.m. on May 3, 2002, and found that both of them had been shot. Maria lay near the front door. She was in shock, scared and bleeding, but she was still conscious and asking for help. Baldomero was sprawled unconscious in an easy chair. When officers asked her what had happened, Maria excitedly said that she and her husband had been shot by "a Latin male, blondish colored hair, and he was about 18 years old." She said "the person that did it is related to the people that live across the street in the rock house." Maria kept repeating that he had colored or bleached hair. She stated "that the guy that shot her took her truck" and "she had recognized him from—from the house across the street that had a rock wall in front of it." Maria said it was "just one person." Baldomero died at their home; Maria died at the hospital a few hours later.

Officers found the license plate number of the Herreras' new white Nissan truck and broadcast it over the police radio. There was only one house with a rock face across the street; appellant's grandmother lived there. Appellant's aunt had left him there earlier in the day. His hair was spiky and blonde on top.

Around 6:00 p.m., appellant arrived at his cousin's apartment in the Herreras' truck. According to Sylvia Flores, appellant's cousin, he arrived alone. When Sylvia asked him where he got the truck, appellant said that he got it from selling drugs. Sometime later, appellant's brother and his brother's wife arrived in their Ford truck.

While appellant was at Sylvia's apartment, a police officer on routine patrol, who had heard the broadcast about the Herreras' stolen truck, saw it parked at Sylvia's apartment complex. He radioed for assistance, and undercover officers in unmarked cars soon arrived and set up surveillance. Around 7:45 p.m., undercover officers noticed a "bleach blonde Latin," later identified as appellant, and another male walk out to the truck, then they both went back inside. At 9:20 p.m., three people, including appellant, came out of the apartment.

Appellant got into the Herreras' Nissan; the other two people got into the Ford truck. The Nissan then followed the Ford out of the apartment complex. When the SWAT officers followed behind him, appellant raced off in the stolen truck, leading officers on a sometimes high-speed chase that lasted about 15 minutes. Eventually, appellant drove down a one-way street and was blocked in by police cars. Appellant refused to get out of the truck, so he was pulled out, handcuffed, and searched. Officers found a black address book, containing Baldomero's credit cards, in his pocket. Appellant was taken to jail and his clothes, a white shirt, jeans and tennis shoes, were collected. Maria's blood was found on the tennis shoes.

The medical examiner testified that Baldomero died from a single gunshot wound to the chest; Maria, who had been shot from three to five times, died from a gunshot wound to the abdomen.

Appellant was charged with capital murder. In a motion in limine, and again at trial, appellant objected to the admission of Maria's statements to the police officers as hearsay and as violating his confrontation rights. The trial court held a hearing outside the presence of the jury to determine if Maria's statements to three different officers were admissible. The State argued that Maria's statements, though hearsay, were admissible under the excited utterance and dying declaration exceptions. Appellant argued that the statements were not dying declarations; he pointed to the officers' testimony that Maria was not aware of the gravity of her condition. He also argued that her statements were not excited utterances because they were not spontaneous; instead, they were answers to police questions. The trial judge doubted that the statements were dying declarations, but he admitted them "mainly under the excited utterance" exception, noting that they also fell under the hearsay exceptions for present-sense impression and then-existing physical condition. The jury convicted appellant of capital murder and sentenced him to life imprisonment.

One of appellant's claims on appeal was that the admission of Maria's out-of-court "testimonial" statements violated his right to confrontation under Crawford v. Washington,³ which the Supreme Court had delivered during the pendency of his appeal. The court of appeals held that Maria's statements were excited utterances and decided that it need not resolve whether they were also testimonial because appellant had forfeited his right to confrontation under the doctrine of forfeiture by wrongdoing.⁴ Noting that the Supreme Court had stated in Crawford that it would continue to recognize the doctrine of forfeiture by wrongdoing, which "extinguishes confrontation claims on essentially equitable grounds," the court of appeals held that "Gonzalez is precluded from objecting to the introduction of Maria's statements on Confrontation Clause grounds because it was his own criminal conduct (in this case, murder) that rendered Maria unavailable for cross-examination."⁵

II.

In all criminal prosecutions, the accused has a Sixth Amendment right to be confronted with the witnesses against him. Even when hearsay offered against a defendant is admissible under evidentiary rules, that evidence may implicate the Confrontation Clause of the Sixth Amendment if the defendant is not afforded the opportunity to confront the out-of-court declarant.⁶ In Crawford v. Washington, the Supreme Court held that "where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: Confrontation."⁷ Nevertheless, the Supreme Court recognized that equitable exceptions to the Confrontation Clause may still apply, and it specifically mentioned the doctrine of forfeiture by wrongdoing which "extinguishes confrontation claims on essentially equitable grounds" as one that it accepts.⁸

The doctrine of forfeiture by wrongdoing has been a part of the common law since at least 1666.⁹ In early English cases, the doctrine allowed a witness's deposition testimony to be admitted instead of live testimony if the defendant caused the witness's absence from trial.¹⁰ The doctrine is based on the principle that "any tampering with a witness should once for all estop the tamperer from making any objection based on the results of his own chicanery."¹¹ In other words, the rule is based on "common honesty" and the maxim that "no one shall be permitted to take advantage of his own wrong."¹²

The Supreme Court first applied the doctrine of forfeiture by wrongdoing over a century ago in Reynolds v. United States.¹³ Reynolds was on trial for bigamy. The prosecution offered the prior testimony of Reynolds's second wife when it was unable to subpoena her because Reynolds refused to reveal her location.¹⁴ Reynolds claimed that the admission of her former testimony violated his Sixth Amendment rights, but the Supreme Court held that Reynolds's wrongful act of hiding his wife away from trial trumped his right of confrontation:

The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.¹⁵

Several early Texas cases referenced or followed the rule in Reynolds.¹⁶

Because of witness tampering in organized-crime prosecutions during the 1970's, several federal courts of appeals either followed Reynolds or expanded the forfeiture doctrine.¹⁷ The doctrine was applied when a defendant intimidated, bribed, or killed a witness to keep him from testifying about a prior crime, and it was used to admit more than just former testimony or depositions; it also allowed the admission of statements made to police by cooperating witnesses who were killed before trial. The rule "operated as a disincentive to keep organized crime affiliates from `knocking off' witnesses."¹⁸

In 1997, the "forfeiture by wrongdoing" doctrine was codified in the Federal Rules of Evidence as a hearsay exception.¹⁹ By that time every circuit that had addressed the issue had recognized the doctrine of forfeiture by misconduct.²⁰ The doctrine was added to Rule 804 to clarify that a party forfeits the right to object, on hearsay grounds, to the admission of a declarant's prior statement when that party's deliberate wrongdoing procured the unavailability of the declarant as a witness....