Haggard v. State

• Decision Date: 09 December 2020
• Docket Number: NO. PD-0635-19,PD-0635-19
• Citation: 612 S.W.3d 318
• Parties: James Ray HAGGARD, Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

612 S.W.3d 318

James Ray HAGGARD, Appellant

v.The STATE of Texas

NO. PD-0635-19

Court of Criminal Appeals of Texas.

Delivered: December 9, 2020

OPINION

Hervey, J., delivered the opinion of the Court in which Keasler, Richardson, Newell, and Walker, JJ., joined.

The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to confront adverse witnesses. The issue here is whether the Confrontation Clause was violated when the trial judge allowed Suzanne DeVore, a Sexual Assault Nurse Examiner (SANE), to testify against James Ray Haggard (Appellant) from Montana using a two-way video system.

Because we conclude that admitting DeVore's remote testimony violated the Confrontation Clause, we will reverse the judgment of the court of appeals holding otherwise and remand the cause to the court of appeals to conduct a new harm analysis.

FACTS

On October 5, 2013, the victim's mother, Traci, took her two children, M.W. and A.W., to Haggard's house to play with his stepson and daughter and spend the night, something that happened often. Traci was life-long friends with Haggard, and her daughters referred to him as "uncle." At the time of the alleged assault, M.W. (the victim) was fifteen years old and A.W. was ten years old. M.W. testified that there were only two bedrooms in the house and that A.W. slept in the living room with Haggard's daughter, that Haggard's stepson slept in the second bedroom, and that she slept in Haggard's room. M.W. told the DeVore that Haggard "pulled [her] back to his bedroom."¹ But at trial, she said that she slept in Haggard's bed because she did not want to sleep on the floor and did not think that Haggard would do anything "perverted."

M.W. told DeVore that, shortly after they got in bed,² Haggard asked her to take off her clothes,³ which she did, then he sexually assaulted her. M.W. said that Haggard digitally manipulated her breasts and put his mouth on them, that he put his mouth on her sexual organ, and that he penetrated her vagina with his penis. The assault ended, M.W. told DeVore, when Haggard told her to get dressed and leave because he thought he heard someone walking down the hallway towards his room. M.W. also told DeVore that Haggard "cleaned himself off with my shirt." M.W. testified that, after she left Haggard's room, she made Haggard's stepson sleep in the living room with the girls and that she slept in the second bedroom bed by herself. She also testified that, after the assault, she texted her friend Brittany and called her friend Austin.

M.W. waited until the following morning to call her mother to pick her and her sister up. When she called, she was crying and upset, but did not tell Traci what happened. Traci testified that M.W. sounded distressed. M.W. called Traci multiple times, asking her to "hurry up," so Traci called Linda Brackin-Barton (Barton), M.W.’s aunt, to pick the kids up since she lived closer to Haggard.⁴ When Barton and the kids returned to Traci's house, Barton said that M.W. told her and Traci what happened. Barton said that M.W. went through the story several times with her and Traci and that "[M.W.] was just talking. She seemed to want to talk about what had happened and I think we were just kind of letting her talk...." M.W. testified that Traci was in the room the entire time, but she also said that she never told her mother the complete story. At trial, Traci testified that she was only in and out of the room and only heard "bits and pieces."

No one called the police, but Traci put M.W.’s clothes in a Ziploc bag because she saw "stuff on them." Later that day, Traci took M.W. to a friend's birthday party. The next day, Traci went to work and sent M.W. to school even though she did not want to go. M.W. testified that she was going to call her father and ask him to pick her up from school because she did not feel well, but Barton unexpectedly showed up and took her to the hospital for a SANE examination. Barton testified that she read that victims of sexual assaults should be physically examined. Barton said that she called Traci on the way to the school and that Traci did not go to the hospital until later in the day because she was at work.

DeVore performed the SANE examination and wrote down M.W.’s account of what happened.⁵ According to DeVore's notes, M.W. was calm and cooperative and made good eye-contact. M.W. told DeVore that Haggard penetrated her vagina, but not her mouth or anus. She also said that she was not sure if Haggard ejaculated on her. DeVore physically examined M.W. and found no trauma to M.W.’s labia majora, labia minora, hymen, vagina, cervix, perineum, or anus. She did, however, find a red and blue bruise approximately 1.5 centimeters by 1 centimeter on M.W.’s right breast.

Later that evening, M.W. was examined by a forensic examiner at Bridgehaven Child's Advocacy Center. M.W. told the examiner that Haggard asked her to play with his penis before they had sex and that, after a while, "semen went everywhere." She also said that she "felt wetness on my hand and on my face. So, I wiped it off with my shirt." Sergeant Stephen Clappart, who was present for the interview, noted that M.W. was "jovial" when he spoke to her. He also noted that M.W. gave the examiner a slightly different account of events.

Jessica Lake, a serologist at the Department of Public Safety crime laboratory in Houston, examined the contents of the SANE kit. The kit contained vaginal swabs, labia majora swabs, labia minor swabs, anal swabs, swabs taken from M.W.’s breasts, headhair combings, a pair of underwear, a bra, a sports bra, and a shirt. Lake did not find the semen on the vaginal swabs, labia swabs, or anal swabs. Lake found areas of interest on the underwear and shirt to test, but both tests were negative for the presence of semen.

Andrea Smith, Lake's supervisor, was DNA forensic examiner. She issued her first report in September 2014. Smith found a single DNA profile consistent with M.W. on the vaginal, labia majora, labia minor, and anal swabs. Testing of the left-breast swabs was inconclusive, but a partial DNA profile was extracted from the right-breast swabs using a MiniFiler™ amplification kit.⁶ The partial profile was consistent with a two-person mixture, from which neither M.W. nor Haggard could be excluded as contributors. Smith said that the probability of selecting an unrelated person at random who could have contributed to the partial profile was 1 in 6 for Caucasians, 1 in 5 for Blacks, and 1 in 4 for Hispanics. The approximate world population at the time of testing was 7 billion people.

In 2017, Smith reinterpreted the DNA data using new testing guidelines and software.⁷ Her results were significantly more inculpatory. She found that it was 339 billion times more likely that M.W. and Haggard contributed to the mixed DNA on the right-breast swab than M.W. and some other unknown and unrelated individual.⁸ Smith was able to develop a partial DNA profile consistent with a two-person mixture from the left-breast swab data, but testing was inconclusive as to whether Haggard was a contributor. Smith was also able to develop a partial DNA profile from the right-breast swab data (without using a MiniFiler™ kit), which she was previously unable to do, and concluded that it is 219 quadrillion times more likely that M.W. and Haggard contributed to the mixture than M.W. and some other unrelated and unknown individual.⁹

CONFRONTATION CLAUSE

a. Background

By the time of trial, DeVore had moved to Montana, but she told the State that she would voluntarily travel to Texas to appear in court and testify. The State agreed to reimburse her expenses, but did not subpoena her. The Friday afternoon before trial began, however, DeVore notified prosecutors that she would not voluntarily appear and testify.

The following Monday, the State asked the trial court to allow DeVore to testify from Montana via FaceTime. According to the State, DeVore's testimony was essential because only she could prove-up the chain of custody of the SANE kit and its contents. If she did not testify, the State alleged, the DNA reports would be inadmissible. The trial court granted the State's motion, and DeVore testified the next day after the court overruled another defense objection.

DeVore testified that even though she initially agreed to appear in court and that reimbursement of her expenses would be sufficient for her to voluntarily appear and testify, she changed her mind at the last minute for economic and personal reasons. She said that, although the State would reimburse her expenses, it was not going to pay her to testify and neither would her employer. (DeVore testified that she was a self-employed consultant.) DeVore, however, never said that she was incapable of traveling to Texas due to financial constraints, or even if she could, traveling to Texas would cause an undue financial burden. DeVore testified that it was inconvenient timing for her because she flew to Houston the week before to testify at a different trial, and she had to fly to Houston again the weekend after the instant trial to be with an ill family member.

The State brought up that it did not subpoena DeVore and that DeVore's husband was a lawyer and told her that she did not have to voluntarily appear and testify unless she was subpoenaed. But the State focused on how it had insufficient time to subpoena DeVore due to her late notification, even though it had ample time to subpoena her before trial but never did. We also note that the State never sought a continuance before asking the trial court to allow DeVore to testify remotely.

b. Applicable Law

The Sixth Amendment Confrontation Clause 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. The Supreme Court long held that the Confrontation Clause protected a criminal defendant's right to physically confront those who...