In the Matter of E.C.D., No. 04-05-00391-CV (Tex. App. 2/21/2007)
| Decision Date | 21 February 2007 |
| Docket Number | No. 04-05-00391-CV.,04-05-00391-CV. |
| Parties | IN THE MATTER OF E.C.D., JR., a Minor. |
| Court | Texas Court of Appeals |
Appeal from the 73rd Judicial District Court, Bexar County, Texas, Trial Court No. 1991-JUV-01209, Honorable Andy Mireles, Judge Presiding.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
Sitting: Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
E.C.D., Jr. appeals his adjudication and disposition based on a finding that he committed the offense of murder. We affirm the portion of the trial court's judgment adjudicating that E.C.D. engaged in delinquent conduct; however, we reverse the trial court's order of disposition and remand the cause for a new disposition hearing.
On the night of September 21, 1991, taxicab driver Curtis Edwards was found dead in his cab. He had been shot once in the head, and his cab had crashed into a house on Onslow Street. A revolver and a black tennis shoe were recovered from the cab. Floyd Thomas testified that later that same night, he called EMS when E.C.D., his twelve year-old stepson, arrived home1 in a dazed and incoherent state. He was wearing one tennis shoe and a bloody t-shirt and smelled of alcohol. E.C.D. was transported to Southeast Baptist Hospital, where he was admitted for a few days. While at the hospital, E.C.D. made statements to nurses, security guards, and a chaplain that raised suspicion regarding his involvement in Edwards' murder. Shortly thereafter, the State filed its petition alleging delinquent conduct based on E.C.D.'s commission of Edwards' murder. At trial, the defense claimed that E.C.D. acted at the direction of Floyd Hardeman, E.C.D.'s uncle and a convicted felon on parole, who had asked E.C.D. if he wanted to make some money by robbing a taxicab driver.2
After finding that E.C.D. engaged in delinquent conduct as alleged in the petition, which included a deadly weapon finding, the jury assessed a 27-year determinate sentence. On March 5, 1992, the trial court rendered judgment on the jury's verdict and imposed a 27-year determinate sentence, ordering E.C.D. committed to the Texas Youth Commission (TYC) until the age of 18 years with a transfer to the Texas Department of Criminal Justice (TDCJ) to serve the remainder of his sentence. E.C.D. requested, and was granted, an out-of-time appeal.
E.C.D. first argues that the trial court erred in admitting certain testimony by Charles Pollard, a hospital chaplain who visited with E.C.D. at Southeast Baptist Hospital. E.C.D. contends that Pollard's testimony was improper because his statements to Pollard were privileged under Texas Rule of Evidence 505.
Preliminary questions of admissibility, including questions concerning the existence of a privilege, are for the trial court. See Tex. R. Evid. 104(a); see also McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993), overruled on other grounds, Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002). When making a privilege determination, the trial court is afforded broad discretion. See Welch v. State, 908 S.W.2d 258, 264 (Tex. App.-El Paso 1995, no pet.). We review the trial court's decision under an abuse of discretion standard, and will reverse a trial court's determination only when "the trial court applied an erroneous legal standard, or when no reasonable view of the record could support the trial court's conclusion under the correct law and the facts viewed in the light most favorable to its legal conclusion." Carmona v. State, 947 S.W.2d 661, 664 (Tex. App.-Austin 1997, no pet.) (quoting DuBose v. State, 915 S.W.2d 493, 498 (Tex. Crim. App. 1996)). Should we determine that the trial court abused its discretion in admitting such testimony, we conduct a harm analysis under Rule 44.2(b). Tex. R. App. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001) ().
Rule 505(b) affords a privilege for confidential communications made by a person "to a member of the clergy in the member's professional character as spiritual adviser." Tex. R. Evid. 505(b);3 Almendarez v. State, 153 S.W.3d 727, 728 (Tex. App.-Dallas 2005, no pet.). "A communication is 'confidential' if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication." Tex. R. Evid. 505(a)(2);Kos v. State, 15 S.W.3d 633, 638-39 (Tex. App.-Dallas 2000, pet. ref'd).
Pursuant to E.C.D.'s motion in limine, Chaplain Charles Pollard first testified outside the jury's presence. Pollard testified that on September 24, 1991, he visited with E.C.D. in the hospital after security was called to E.C.D.'s room due to a disturbance. Pollard assumed that E.C.D. was having "some problems," some of which were "spiritual," and he visited with E.C.D. as a chaplain "to bring ministry to apparently a very distraught patient in the hospital." Pollard testified that E.C.D. told him that he would have to go to jail because he "killed a man" and "[w]hen you killed a man, you have to go to jail." Pollard continued by stating that E.C.D. told him several different stories about how the shooting happened, but "continued to come back to the fact that he had pulled the trigger." Pollard stated that there were also nurses in the room while he visited with E.C.D.; however, on cross-examination, Pollard stated that E.C.D. did not share details about the murder when the nurses were present. Pollard heard E.C.D. tell the nurses that he would stay in his bed if they could guess a secret "about something on the news," "[a]bout like something about somebody's been shot."
The defense objected to all of Pollard's testimony on the basis of Rule 505. The court initially ruled that, in light of the testimony of two hospital security officers and two nurses about similar statements made by E.C.D.,4 none of E.C.D.'s statements to Pollard were made privately, and therefore the statements were not confidential. However, after further argument from the defense, the court modified its ruling, stating,
I do think [Rule 505] applies to private conversations with the Chaplain. And I get the sense that [E.C.D.] got a little bit more specific. What I hear in his testimony is actually is very specific, when it came to talking to the Chaplain. To me, there is a difference. And I agree with you. I suppose we'll have to wait until [Pollard] actually testifies to make that determination ... [I] [w]ill allow the testimony when it's done in the presence of somebody other than the clergyman. If it's done privately — meaning nobody else in the room, ... the Court will keep that part out.
In the presence of the jury, Pollard testified similarly; however, his testimony varied from his earlier statements in that he stated, "[b]est of my recollection, during that time [when the nurses were present], [E.C.D.] said that he had shot the taxi driver." When the defense asked if he recalled previously "testifying that the only thing E.C.D. did in front of the nurses was ask about the shooting, ask questions, get them to provide answers," Pollard replied, The proceedings were then recessed so the defense could obtain a transcript of the prior statements to impeach Pollard. Later, Pollard was again questioned outside the jury's presence, and the defense subsequently moved for a mistrial due to the inconsistent testimony. The motion for mistrial was denied.
On appeal, E.C.D. argues that the trial court misstated the law when it determined that the Rule 505 privilege only applied to communications made to Pollard when no one else was present in the room. To support his argument, E.C.D. relies on Nicholson v. Wittig, in which the court held that Rule 505(a)(2) contemplates that others may be present when confidential communications are shared with a chaplain, especially in a hospital setting where doctors and nurses routinely enter and exit patients' rooms. See Nicholson v. Wittig, 832 S.W.2d 681, 685 (Tex. App.-Houston [1st Dist.] 1992, orig. proceeding). Although we agree that the trial court read Rule 505 narrowly, we cannot conclude that the trial court abused its discretion in admitting Pollard's testimony because E.C.D.'s conduct in making similar inculpatory statements to the nurses and security guards supports the trial court's finding that E.C.D. did not make the statements to Pollard with a reasonable expectation of confidentiality. See Nicholson, 832 S.W.2d at 685; Kos, 15 S.W.3d at 638-39. The court's ruling was not beyond the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).
Moreover, E.C.D. has failed to show that he was harmed by the admission of Pollard's testimony. See Tex. R. App. P. 44.2(b); Johnson, 43 S.W.3d at 4. Four other witnesses testified to similar statements E.C.D. made while in the hospital that implicated him in the shooting death of Curtis Edwards. Robert Duncan, a security officer at Southeast Baptist Hospital, testified that on September 24, 1991, he was called to E.C.D.'s room to control him because he would not stay in bed and was running up and down the hallway. Duncan stated that E.C.D. told him that he was not scared of him and that he had already killed one person. Linda Garcia, a nurse at Southeast Baptist Hospital, testified that E.C.D. told her that he would...
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