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
C O N C U R R I N G O P I N I O N
Under the Sixth Amendment=s Confrontation Clause, testimonial statements of certain witnesses cannot be admitted over a criminal defendant=s Confrontation Clause objection unless the prosecution shows that (1) the witness is unavailable to testify and (2) the defendant has had a prior opportunity to cross-examine the witness.[1] The Crawford court describes the category of witnesses to which this rule applies in various, apparently synonymous, ways as (1) witnesses who do not Aappear at trial,@[2] (2) Aabsent@ witnesses,[3] (3) witnesses Aabsent from trial,@[4] (4) witnesses who do not Aappear[] for cross-examination at trial,@[5] and (5) witnesses who are not Apresent at trial to defend [their statements] or explain [them].@[6] What witnesses fall within this category?
! Only those witnesses who are not physically present in the courtroom or in a nearby holding cell during trial?[7]
! Only those witnesses who do not take the witness stand at trial?
! Only those witnesses (a) who do not take the witness stand at trial or (b) who take the witness stand at trial but assert a valid privilege that permits them not to testify?
! Only those witnesses (a) who do not take the witness stand at trial or (b) who take the witness stand at trial but refuse to testify, whether or not they have a valid legal basis for their refusal?
! Only those witnesses (a) who do not take the witness stand at trial or (b) who take the witness stand at trial but refuse to testify after being ordered to do so by the trial court, whether or not they have a valid legal basis for their refusal?[8]
! Only those witnesses (a) who do not take the witness stand at trial, (b) who take the witness stand at trial but refuse to testify after being ordered to do so by the trial court, or (c) who take the witness stand at trial but refuse to testify based on a valid legal privilege from testifying, without being ordered to testify by the trial court?
These are compelling and interesting issues but ones this court need not decide to resolve this case.
Presuming, without deciding, that the trial court erred in admitting into evidence Ronald Flores=s statement, any error would be harmless for the reasons aptly noted by the plurality. See Tex. R. App. P. 44.2(a); Davis v. State, 203 S.W.3d 845, 852B56 (Tex. Crim. App. 2006). Therefore, the court can and should affirm the trial court=s judgment on this basis alone.[9]
/s/ Kem Thompson Frost
Justice
Judgment rendered and Plurality and Concurring Opinions filed September 27, 2007.
Panel consists of Justices Fowler, Frost, and Edelman.* (Edelman, J., plurality) (Fowler, J., concurring without an opinion).
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Crawford v. Washington, 541 U.S. 36, 53B54, 124 S. Ct. 1354, 1365, 158 L. Ed. 2d 177 (2004).
[2] Id., 541 U.S. at 54, 124 S. Ct. at 1365.
[3] Id., 541 U.S. at 54, 124 S. Ct. at 1366.
[4] Id., 541 U.S. at 59, 124 S. Ct. at 1369.
[5] Id., 541 U.S. at 59, n.9, 124 S. Ct. at 1369, n.9.
[6] Id.
[7] This rule has been rejected by several courts. See State v. Cox, 876 So. 2d 932, 938B39 (La. Ct. App. 2004); State v. Snowden, 867 A.2d 314, 330B33 (Md. 2005); see also Bratton v. State, 156 S.W.3d 689, 693B94 (Tex. App.CDallas 2005, pet. ref=d) (appearing to reject this rule); Wilson v. State, No. 05-06-00788-CR, 2007 WL 2193347, at *3B5 (Tex. App.CDallas Aug. 1, 2007, pet. filed) (same as Bratton).
[8] The Supreme Court of Indiana appears to have adopted this rule. See Fowler v. State, 829 N.E.2d 459, 470 (Ind. 2005).
[9] Although the plurality states that it Aneed not reach a holding on error,@ it does so in a section entitled AError@ after making statements regarding the merits of some of the error arguments.
* Senior Justice Richard H. Edelman sitting by assignment.