Affirmed and Plurality and Concurring Opinions filed September 27, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-05-00612-CR
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SALVADOR VIDAL MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 997,759
P L U R A L I T Y O P I N I O N
Salvador Vidal Martinez appeals a conviction for capital murder[1] on the ground that his Sixth Amendment right to confrontation was violated by the trial court admitting into evidence, over his objection, the custodial statement of an accomplice, Ronald Flores, who was unavailable to testify at trial and whom appellant had no prior opportunity to cross-examine. We affirm.
Standard of Review
Although evidentiary rulings are generally reviewed for abuse of discretion, we review a constitutional legal ruling de novo. See Wall v. State, 184 S.W.3d 730, 742B43 (Tex. Crim. App. 2006). In all criminal prosecutions, an accused has the right to be confronted with the witness against him. U.S. Const. Amend. VI. Therefore, Atestimonial@ statements of a witness who does not appear at trial may not be admitted into evidence unless the witness is unavailable to testify and the defendant has had a prior opportunity to cross-examine that witness. Crawford v. Washington, 541 U.S. 36, 68-69 (2004).
In this case, the State and appellant agree that Flores=s statement was Atestimonial@ because it was the result of police interrogation, but they dispute whether Flores was unavailable to testify. Flores was physically present at trial, had use immunity,[2] and had no legitimate Fifth Amendment privilege (because he had already been convicted of the same offense), but he refused to testify. When the court questioned Flores=s appointed counsel about this, his counsel informed the court that Flores would refuse to testify even if held in contempt. Although the trial court offered to do so, neither the State nor appellant=s counsel requested that Flores be brought into the courtroom to testify. Over appellant=s Confrontation Clause objection, the trial court ruled that Flores=s statement was admissible.[3]
Error
To whatever extent a defendant may waive his right to confrontation by declining to cross-examine an available witness, the refusal of a witness to testify (whether rightly or wrongly) is not such a waiver and defeats the right of confrontation just as much as the unavailability of a witness to testify. However, in addressing an analogous problem, the United States Supreme Court has said:
Respondents in both cases, joined by a number of their amici, contend that the nature of the offenses charged in these two cases-domestic violence-requires greater flexibility in the use of testimonial evidence. This particular type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial. When this occurs, the Confrontation Clause gives the criminal a windfall. We may not, however, vitiate constitutional guarantees when they have the effect of allowing the guilty to go free. But when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. . . . We reiterate . . . that Athe rule of forfeiture by wrongdoing . . . extinguishes confrontation claims on essentially equitable grounds.@ That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.
* * * *
We have determined that, absent a finding of forfeiture by wrongdoing, the Sixth Amendment operates to exclude [the challenged] affidavit.
Davis v. Washington, 126 S. Ct. 2266, 2279B80 (2006) (citations omitted). Because the State has not alleged a forfeiture by wrongdoing by appellant, the foregoing language in Davis indicates that the admission of Flores=s statement was a Confrontation Clause violation even if his refusal to testify was wrongful and prevented the admission of reliable evidence. However, because we conclude below that any error in admitting this evidence was harmless, we need not reach a holding on error. See, e.g., Taylor v. State, __ S.W.3d __, __ (Tex. Crim. App. 2007) (holding that asserted error was harmless without concluding whether it was error).
Harm
Constitutional error that is subject to harmless error review requires reversal of the conviction unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. Tex. R. App. P. 44.2(a). In this context, the ultimate question is whether the asserted error, within the context of the entire trial, moved the jury from a state of non-persuasion to one of persuasion on a particular issue. Davis v. State, 203 S.W.3d 845, 852B53 (Tex. Crim. App. 2006), cert denied, 127 S. Ct. 2037 (2007). The relevant considerations include: (1) the importance of the hearsay statements to the State=s case; (2) whether the hearsay evidence was cumulative of other evidence; (3) the presence or absence of evidence corroborating or contradicting the hearsay testimony on material points; and (4) the overall strength of the prosecution=s case. Id.[4]
The evidence in this case, independent of Flores=s statement, included the following. Just before the shooting, Anthony Joiner looked out an apartment window and observed the complainant talking to the driver of a maroon Ford Taurus station wagon in the parking lot of the apartment complex. After returning to watching television, Joiner heard a gunshot, looked out the window, and saw the complainant lying on the ground and the station wagon speeding off.
An apartment security guard, John Westerfield, also heard a loud sound as if a car had backfired, saw a car stopped on the property, and saw the complainant lying on the ground. The apartment complex security video showed that a maroon station wagon had entered the complex and exited the complex at a high rate of speed, but the car=s license plate and the images of the driver and passenger could not be seen.
Police later received a tip on a motel where Flores could be found and brought him and Kristen Simmons (who was with Flores at the motel) in for questioning. Flores was arrested the following day. On the day after that, Simmons informed the police that appellant had made statements to her while being transported in the police car.
Simmons testified that she had been with appellant and Flores at the motel when the police came. After being questioned about the murder at the Homicide Division, Simmons and appellant were transported together to the Mykawa juvenile facility. While in the police car, appellant proudly told Simmons that he had Ashot that fool@ with a .44. Officer Michael Lyons testified that the complainant had been shot with a .44 caliber weapon.
Appellant claims that the admission of Flores=s statement was harmful in that the State used his confession as more than mere testimony against appellant. Specifically, appellant argues that, based on Flores=s statement, the jury could have concluded that the shooting of the complainant was merely one in a string of Ajackings@ Flores committed together with any of the youths who were with him in the motel room. Additionally, appellant contends that the jury=s verdict was compromised because both Flores and Simmons were under the influence of substances which altered their ability to perceive the events they later stated as evidence in the case.
Flores=s statement[5] was unquestionably important to the State=s case in corroborating the evidence provided by other witnesses at trail, but was largely cumulative of that evidence. In addition, even excluding Flores=s statement, the evidence was amply sufficient to support the conviction, and the evidence that was material to proving appellant committed the offense was not strongly controverted or impeached. Therefore, we can find no basis to conclude that the error in admitting Flores=s statement, within the context of the entire trial, could have moved the jury from a state of non-persuasion to one of persuasion on any material issue. Accordingly, that error was harmless beyond a reasonable doubt, appellant=s sole issue is overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Senior Justice
Judgment rendered and Plurality and Concurring Opinions filed September 27, 2007.
Panel consists of Justices Fowler, Frost, and Edelman.* (Frost, J., concurring) (Fowler, J., concurring without an opinion).
Do not publish C Tex. R. App. P. 47.2(b).
[1] A jury convicted appellant of capital murder and the trial court assessed punishment at life imprisonment.
[2] A witness who has been granted use immunity for his testimony does not have a valid basis for refusing to testify. See Coffey v. State, 796 S.W.2d 175, 179 (Tex. Crim. App. 1990).
[3] The trial court stated that it would be futile and inappropriate to put Flores on the stand if he intended to invoke his Fifth Amendment right in front of the jury, but also expressed concern that Flores was using Crawford to obstruct justice by simply refusing to testify even though he was available.
[4] However, we may not speculate as to whether cross-examination would have been effective or not had it occurred. Id. at 851.
[5] The statement Flores made stated in part:
Prior to and during the making of this statement, I knowingly, intelligently, and voluntarily waive the rights set out above and make the following voluntary statement: My name is, Ronald Herman Flores, and I am 18 years old. [Appellant] told me that a few weeks ago he had a .44 handgun. One day I bought a car, a red Ford Taurus . . . . One day me and [appellant] were trying to make some money. I knew that at Hunter=s Forest it was a lot of dope dealers. We thought that we could jack someone for their crack so we could sell it and make some money. So, we drove to Hunter=s Forest and I was driving. I used to live there before, so I drove slow and the security guard let me pass through. I went there about 9:00 p.m. to 11:00 p.m. I parked reversed [sic] by the gate . . . . I rolled down my window . . . . The guy walked up to my window and said, quote: You all looking for that work? We both said yes. So I told him, don=t move and give me the work. I had a .25 caliber in my hand and [appellant] had a .44 in his hand. We both told him don=t move, and I reached out the window with the .25 in my right hand. The car was still on with the lights off. With my right hand out the window, I learned [sic] back and tried to shoot him, but the gun did not go off. I saw [appellant=s] pistol across my body and he shot one time. I saw the guy fall, so I put the car in drive and took off. I made a right and went around the apartment complex and I rushed out the gate. . . . The next day I told my girlfriend that we had killed a guy.
* Senior Justice Richard H. Edelman sitting by assignment.