Moore v. State, 06-04-00148-CR.

• Citation: 169 S.W.3d 467
• Decision Date: 26 July 2005
• Docket Number: No. 06-04-00148-CR.,06-04-00148-CR.
• Parties: Tavares Latra MOORE, Appellant, v. The STATE of Texas, Appellee.
• Court: Supreme Court of Texas

Page 467

169 S.W.3d 467

Tavares Latra MOORE, Appellant, v. The STATE of Texas, Appellee.

No. 06-04-00148-CR.

Court of Appeals of Texas, Texarkana.

Submitted March 24, 2005.

Decided July 26, 2005.

R. Scott Walker, Marshall, for appellant.

Ray Bowman, Asst. Dist. Atty., Longview, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Chief Justice MORRISS.

Approximately one hour after responding to a report of domestic violence at the home of Kimberly Fifita and Tavares Latra Moore, police questioned Fifita and her nine-year-old son on videotape. In response to police questions, Fifita stated that Moore had assaulted her, by choking her, hitting her with a chair, and slamming her against a wall.¹ Fifita's son offered a few corroborating answers on the videotape. Although Fifita had been subpoenaed by the State to testify at Moore's resulting trial for assault,² she did not appear in time to be examined in person.³ Her son also did not testify. The videotape was admitted over Moore's objection.⁴

In two points of error, Moore contends that the introduction of the videotape was harmful error and that his motion for directed verdict should have been granted. We reverse his conviction and remand for a new trial because we hold (1) admitting the videotape was harmful error, and (2) denying Moore's motion for directed verdict was proper.

(1) Admitting the Videotape Was Harmful Error

In his first point of error, Moore argues that admitting the videotape violated the Confrontation Clause of the United States Constitution.⁵ The State argues the videotape contained only excited utterances, all excited utterances are nontestimonial, and therefore this statement was properly admitted. We sustain Moore's first point of error because

(a) after Crawford,⁶ the Confrontation Clause requires exclusion of testimonial statements unless there has been a prior opportunity for cross-examination;

(b) "testimonial" statements include at least prior testimony, police interrogations, and the like;

(c) an excited utterance is not necessarily nontestimonial;

(d) the videotape was testimonial and therefore was erroneously admitted; and

(e) admitting the videotape was harmful.

We examine each of those logical steps in that order.

(a) After Crawford, the Confrontation Clause Requires Exclusion of Testimonial Statements Unless There Has Been a Prior Opportunity for Cross-Examination

The Sixth Amendment provides, "in all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him." U.S. CONST. amend. VI. "The Sixth Amendment's right of confrontation is a fundamental right and is applicable to the States by virtue of the Fourteenth Amendment." Shelby v. State, 819 S.W.2d 544, 546 (Tex.Crim.App.1991); McClenton v. State, 167 S.W.3d 86, 93 (Tex.App.-Waco 2005, no pet.).

Until recently, the application of the Confrontation Clause to an out-of-court statement was governed by Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), overruled in part, Crawford, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177.⁷ Under Roberts, the statement of an unavailable witness was admissible if it had sufficient "indicia of reliability." Roberts, 448 U.S. at 66, 100 S.Ct. 2531. Reliability could be inferred if the evidence fell within a firmly rooted hearsay exception. Id.

In Crawford, the United States Supreme Court set out a new test for challenges to out-of-court statements based on the Confrontation Clause. Crawford held that the Confrontation Clause was a procedural guarantee which commands that "reliability be assessed in a particular manner: by testing in the crucible of cross-examination." Crawford, 541 U.S. at 61, 124 S.Ct. 1354.⁸ The Court held that, "where testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability [of the witness] and a prior opportunity for cross-examination." Id. at 68, 124 S.Ct. 1354. Crawford reasoned that the Confrontation Clause was intended to prevent the historic practice of using ex parte examinations as evidence against the accused. Id. The Court rejected the view that the Confrontation Clause applies only to in-court testimony and that the introduction of out-of-court testimonial statements depended on the laws of evidence. Id. at 61, 124 S.Ct. 1354. The Court determined that the framers of the Constitution would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he or she was unavailable to testify and the defendant had a prior opportunity for cross-examination. Id. at 68, 124 S.Ct. 1354.

(b) "Testimonial" Statements Include at Least Prior Testimony, Police Interrogations, and the Like

Though Crawford does not definitively define "testimonial,"⁹ it does give some suggestions as to its meaning. The Court held that a statement, which was "knowingly given in response to structured police questioning," was testimonial. Id. at 53 n. 4, 124 S.Ct. 1354. The Court noted:

"Testimony," in turn, is typically "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." 1 N. Webster, An American Dictionary of the English Language (1828). An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.

Id. at 51, 124 S.Ct. 1354. Testimonial statements are not limited to statements given under oath. See id. at 52, 124 S.Ct. 1354. In addition, the Court noted several proposed definitions for testimonial:

Various formulations of this core class of "testimonial" statements exist: "ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially," Brief for Petitioner 23; "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions," White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (Thomas, J., joined by Scalia, J., concurring in part and concurring in judgment); "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," Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 3.

Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354. The first two proposed formulations relate to the formal nature of the interaction during which the statement was made. They focus on the formal quality of the statement and its similarity to ex parte in-court testimony. The third proposed formulation focuses on the reasonable expectations of an objective witness.

Yet the Court refused to adopt any of the proposed formulations as a core class of "testimonial" statements. The Court noted that the term "testimonial" includes at a minimum "prior testimony at a preliminary hearing, before a grand jury, or at a former trial" and to "police interrogations." Id. at 68, 124 S.Ct. 1354. In determining whether a statement is "testimonial," courts have examined the formal nature of the interaction, the intent of the declarant, or some combination of the two factors. We will examine each of these factors in turn.

Formality. The text of Crawford focuses extensively on the formal nature or quality of the interaction. The Court held "the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." Id. at 50, 124 S.Ct. 1354. The Court analyzed at length historical ex parte examination practices and the original intent of the Confrontation Clause. As the Court emphasized, the Confrontation Clause "is a procedural rather than a substantive guarantee." Id. at 61, 124 S.Ct. 1354. Thus, if the nature of the interaction possesses a sufficiently formal quality such that it is the functional equivalent of ex parte in-court testimony, the statement is testimonial.

Some other courts have focused on the formal nature of the interaction. See Lee v. State, 143 S.W.3d 565, 570 (Tex.App.-Dallas 2004, pet. ref'd); see also Ruth v State, 167 S.W.3d 560, 568-69 (Tex.App.-Houston [14th Dist.] 2005, no pet. h.) (whether statement is testimonial turns on procedure used to obtain it, not its contents). In Lee, the Dallas Court of Appeals held that an out-of-court statement of a codefendant made during a roadside stop, after he had been arrested and in response to questions of an officer, was testimonial. See Lee, 143 S.W.3d at 570. The court stated, "Although the statement in question was not audible on the recording, that does not alter the formality of the setting that was intended to record testimony for the prosecution of the case being investigated." Id. The State argues the Dallas Court of Appeals erred in focusing on the intent of the police officer in recording the statement. We disagree that the Dallas Court of Appeals erred in focusing on the intent of the police officer. The intent of the police officer is relevant because it is a strong indication that the interaction was the functional equivalent of a police interrogation. See id. Though the Lee interview may have lacked some of the formality of the interrogation addressed in Crawford, the Dallas Court of Appeals apparently concluded that formality in an interaction could be sufficiently similar to a formal police interrogation to make the statement testimonial.

The Indiana Court of Appeals has held that whether a statement is testimonial...