Woodall v. State

• Decision Date: 02 March 2011
• Docket Number: No. PD–1379–09.,PD–1379–09.
• Citation: 336 S.W.3d 634
• Parties: Phyllis Anne WOODALL, Appellant,v.The STATE of Texas.
• Court: Texas Court of Criminal Appeals

336 S.W.3d 634

Phyllis Anne WOODALL, Appellant,

v.The STATE of Texas.

No. PD–1379–09.

Court of Criminal Appeals of Texas.

March 2, 2011.

David L. Botsford, Austin, for Appellant.Tom A. Darnold, Asst. D.A., El Paso, Jeffrey L. Van Horn, State's Attorney, Austin, for State.

OPINION

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

Appellant was indicted for one count of aggravated promotion of prostitution (Count I) and four counts of engaging in organized criminal activity (Counts II–IV). The State proceeded to trial on Count II of the indictment. The jury found Appellant guilty, and the trial court sentenced Appellant in accordance with the jury's assessed punishment of 16 years' confinement and a $10,000 fine. The El Paso Court of Appeals affirmed the conviction of the trial court, but it reversed and remanded the case for a new trial on the issue of punishment. Woodall v. State, No. 08–07–00015–CR, 2009 WL 2872837, 2009 Tex.App. LEXIS 7112 (Tex.App.-El Paso Sept. 9, 2009) (not designated for publication). We granted review to determine whether Appellant's confrontation rights were violated. We will reverse the court of appeals and remand for consideration of Appellant's remaining point of error.

I. FACTS

The Naked Harem was an adult-entertainment establishment in El Paso where patrons paid a cover charge to enter and to be entertained by women dancing nude. Appellant was a co-owner and operator of the nightclub. This case arises out of acts of prostitution that occurred on a regular basis at the club. Appellant was indicted for one count of aggravated promotion of prostitution (Count I) and four counts of engaging in organized criminal activity (Counts II–IV).¹ The State proceeded to trial on Count II of the indictment. Woodall, 2009 WL 2872837, 2009 Tex.App. LEXIS 7112.

During the guilt phase of trial, the State called several former managers, dancers, and patrons of the club. Generally, the testimony indicated that the club's official policy was that no sexual contact was allowed anywhere in the club, including the private rooms, but it was common for the dancers to engage in sexual acts with the patrons. The testimony of the dancers and patrons who had engaged in sexual acts and prostitution in the club, as well as other testimony and physical evidence connecting Appellant to the prostitution activities at the club, is summarized in the court of appeals's opinion. Id. at *1–3, 2009 Tex.App. LEXIS 7112, at *3–8. The State rested its case-in-chief without calling Lucia Pinedo, a former dancer, to testify.

In her case-in-chief, Appellant presented the testimony of several dancers who stated it was club policy that no sex was allowed in the club and who claimed not to engage in acts of prostitution at the club. Appellant also testified in her own defense in an attempt to distance herself from the prostitution activities in the club. Following her own testimony, Appellant called Pinedo to testify as a defense witness.²

During direct examination by Appellant, Pinedo testified that she had been in a car accident at the age of eighteen and suffered memory loss. She specifically stated that although she had been told she danced at the Naked Harem, she did not remember it. She also asserted that she did not remember testifying before the grand jury, but she had been told that she had done so. On cross-examination by the State, Pinedo again affirmed that she did not remember dancing at the Naked Harem or testifying before the grand jury. Testimony also indicated that Pinedo was 15 years old when she danced at the Naked Harem. At the conclusion of Pinedo's cross-examination, there was no re-direct examination by Appellant.

At that time, the trial court asked if Pinedo could be “permanently excused.” The State requested that she be kept under subpoena for possible recall, so before excusing her “temporarily,” the trial court instructed Pinedo to remain in the building in case her testimony was needed on that day or the next. Subsequently, a bench conference was held, during which Appellant discussed the remaining evidence she might introduce and the State represented that it was not going to have any rebuttal evidence. The jury was then excused for the evening.

The next day, Appellant offered three documents into evidence and then rested. The State, in its rebuttal, attempted to recall Pinedo to the stand. Because she was not present inside or outside of the courtroom, the State proposed to read Pinedo's grand jury testimony to the trial jury as past recollection recorded under Texas Rule of Evidence 803(5). Appellant objected on two grounds. First, she argued that the testimony was not admissible as past recollection recorded because the State had not laid the proper predicate. Second, she contended that the testimony would deny Appellant her right to confrontation and cross-examination—she would not have the opportunity to question Pinedo about the discrepancy between her grand jury testimony that she used her school ID card, which did not have her age, to obtain employment and a manager's testimony that a birth certificate was shown instead. The trial court offered to secure Pinedo's presence with a writ of attachment, but Appellant declined because it would be a futile act due to Pinedo's lack of memory.³ Consequently, the trial court overruled Appellant's objections and allowed the State to read into evidence the 57–page transcript of Pinedo's grand jury testimony.

The grand jury testimony was similar to the testimony of the other dancers called as witnesses by the State. Pinedo stated that although she was told no sex was allowed, she had sex and sexual contact with patrons on several occasions in the private rooms at the club. She also allowed patrons to touch her breasts and vagina during lap dances on the floor if they were willing to pay more. The only wrinkle added by the grand jury testimony was the fact that she was only fifteen years old when she was dancing at the club. Pinedo explained that when she sought employment, she showed the manager her high school ID card, not a social security card, and told the manager that she was eighteen years old. The State referred to Pinedo's age during its closing argument on several occasions.

The jury found Woodall guilty. During the punishment phase, the State re-visited the evidence presented at trial, including Pinedo's grand jury testimony. In urging the jury to consider a prison sentence rather than probation as Appellant requested, the State emphasized Appellant's lack of responsibility and that she never apologized for allowing “child prostitution” to occur. The State referred to the “15–year–old” multiple times, and it underscored the fact that Appellant allowed a “15–year–old” to work at the club as a prostitute, even when she looked like she was twelve. The trial court sentenced Appellant in accordance with the jury's assessed punishment of 16 years' confinement and a $10,000 fine.

II. COURT OF APPEALS

On appeal, Appellant's eighth point of error argued that the admission of Pinedo's grand jury testimony violated the Confrontation Clause. The El Paso Court of Appeals agreed. Woodall, 2009 WL 2872837, 2009 Tex.App. LEXIS 7112.

The court of appeals began by properly setting forth the Crawford standard for analyzing Confrontation Clause issues.⁴ See Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). After acknowledging that grand jury testimony is testimonial in nature, the court concluded that the Confrontation Clause was implicated in this case because Pinedo was “absent” from trial due to her memory loss. The court noted that, although Pinedo was questioned by Appellant at trial, she testified to a complete memory loss as to the relevant subject-matter. It further stated that “ ‘[a]bsence’ in the sense implicating the Confrontation Clause does not always mean physical absence (although we note that Pinedo was physically absent when her testimonial statements were read),” and to support its proposition, the court cited to Texas Rule of Evidence 804(a)(3) ⁵ and several court of appeals opinions. Woodall, 2009 WL 2872837, at *5, 2009 Tex.App. LEXIS 7112, at *12–13. Therefore, the court of appeals held that “the Confrontation Clause was implicated here because the State used out-of-court testimonial statements about which the declarant could not be cross-examined due to memory loss.” Id. at *5, 2009 Tex.App. LEXIS 7112, at *13.

The court of appeals then addressed the State's argument that Pinedo's absence could have been remedied by a writ of attachment. The court determined that a writ of attachment would have been futile—it would not have changed the fact that Pinedo was absent because of her memory loss. Subsequently, the court of appeals held that the admission of Pinedo's grand jury testimony violated the Confrontation Clause as set forth in Crawford. Pinedo's memory loss made her unavailable, and “Appellant never had—and would not have had—an opportunity to cross-examine Pinedo regarding her grand jury testimony,” even if Pinedo returned to court. Id. at *5, 2009 Tex.App. LEXIS 7112, at *14.

Next, the court of appeals conducted a harm analysis. After articulating the standard for analyzing a Crawford error, including the four factors to consider,⁶ the court held that the error was harmless as to the guilt phase but harmful as to the punishment phase. Id. at *6–7, 2009 Tex.App. LEXIS 7112, at *15–18. It concluded that Pinedo's grand jury statement did not contribute to the conviction because it was cumulative of the former dancers' testimony, and even if the grand jury testimony were excluded, the evidence was legally sufficient to support a conviction. But the same could not be said at the punishment phase. The court stated that the alleged acts of child prostitution were “explosive and likely had a significant impact on the minds...