JUDY GAIL RAYMOND v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice Moseley

A jury convicted Judy Gail Raymond of the misdemeanor offense of driving while intoxicated;  in accordance with the jury's verdict, she was sentenced to 180 days' confinement in the county jail, suspended and community supervision imposed for two years, and a $2,000 fine.   See Tex. Penal Code Ann. § 49.04(a) (West 2011).   Appellant brings one point of error contending the trial court reversibly erred in admitting certain evidence in violation of the Sixth Amendment (Confrontation Clause) of the United States Constitution, as applied to the states by the Fourteenth Amendment, and article I, section 10 of the Texas Constitution.   See U.S. Const. amends.   VI, XIV;  Tex. Const. art.   I, § 10.   The background of the case and the evidence adduced at trial are well known to the parties;  thus, we do not recite them here in detail.   Because all dispositive issues are settled in law, we issue this memorandum opinion.   Tex.R.App. P. 47.2(a), 47.4.   Because we conclude the trial court's error in admitting the testimony was harmless, we affirm.

I. BACKGROUND

At about midnight on April 15, 2007, Department of Public Safety Trooper David Taylor investigated the crash of appellant's vehicle into a light pole a few houses down the street from her residence.   Taylor testified he believed appellant had been driving the vehicle, although she denied it, and was intoxicated.   He administered field sobriety tests, which appellant failed;  she contended she could not pass the tests because of a preexisting medical condition.   Taylor drove appellant to the police station.   A videotape made at the police station recorded Taylor telling appellant about statements by a witness (later identified as David Thompson), contradicting appellant's account.   After she was interviewed at the police station, appellant was treated at a hospital.

Appellant testified that on the day of her arrest she had been “self-medicating” with Peppermint Schnapps and Canadian Mist to relieve her pain from a prior back injury;  in between doses she would fall asleep.   She awakened to the sound of her dogs barking.   She went outside to investigate, taking her large dog with her.   When she saw the lights were out in several houses along the street, she put her dog back in the house.   While doing so, she inadvertently locked herself out of the house.

Continuing her investigation, appellant noticed her car was down the street, crashed into a telephone pole.   She tried to turn off the engine, but she was unsuccessful in turning it off and removing the keys because the steering wheel was bent and the air bag was deployed.   She then proceeded to the home of a neighbor, who told her the fire department had been called.   There she waited.

II. CONFRONTATION CLAUSE

A.  Facts

Thompson, the person who spoke to Taylor, died before trial.   Appellant filed a pretrial motion to suppress Taylor's hearsay testimony of Thompson's statements, arguing Taylor's testimony violated her federal and state constitutional rights.   She requested suppression of Taylor's references to Thompson's statements on the videotape and any testimony by Taylor or others concerning Thompson's statements.   The trial court carried the motion.

During Taylor's direct examination, he testified appellant “started complaining about having chest pains”;  she told him she was sorry she had lied to him, and “[s]he admitted to me while we were in the jail that she was driving.”   This admission was made at “book in” where there was no audio or video.

A nurse at the jail informed Taylor that he needed to take appellant to the hospital.   The following exchange occurred about a conversation between Taylor and appellant on the way to the hospital:

Q. Would you describe for the jury what that conversation was about?

A. It was about her, she asked me if seeing what I saw at the crash scene, should she be in so much pain.   I informed her, yes, you should be in pain.   She didn't have a seat belt on, she bent the steering wheel, she should be in a lot of pain.

Q. So she asked you, based on what you saw at the scene of the accident, whether she should be in that much pain?

A. Yes, ma‘am.

Q. Did that indicate to you another admission that she was driving the vehicle?

A. Yes, ma‘am.

Subsequently, the State moved to admit the videotape as State's Exhibit 4. The trial court asked appellant to present her motion to suppress.   The trial court viewed the videotape, which recorded Taylor relating to appellant that a witness told Taylor that the light pole was right in front of his house, he heard a “racket” and immediately went out of his house and saw appellant, who lived “a few houses away,” at the scene.   The State argued Taylor's statements were not hearsay but were made as part of his investigation, and that Taylor could be cross-examined.   The trial court overruled appellant's objections and overruled her motion to suppress.   The jury viewed State's Exhibit 4.

On re-direct examination, the State then asked Taylor, “What did David Thompson tell you about the incident?”   Appellant objected “to hearsay.”   The State replied that the evidence rebutted appellant's insinuation that Taylor did not “do a thorough investigation,” not to prove the truth of the matter asserted.   The trial court overruled appellant's objection.   Taylor testified that Thompson said he

heard a loud vehicle like it was traveling fast, heard a big bang, and then he came outside and found the brunette lady inside the vehicle.   She told him not to call 911.   He smelled alcohol coming from her breath and was very I guess distrait [sic] from the accident.   She went home, couldn't get inside of her house because she didn't have the keys.   She came back to the vehicle, tried to get the keys, and I believe that is when he went inside and she went to a neighbor's house.

Taylor testified that Thompson identified “the brunette lady” as appellant, that she told Thompson she was going to report the vehicle stolen, and that “whenever she went home, came back out, she was making a big fuss acting like someone stole my vehicle.”

B. Preservation

Appellant's Confrontation Clause argument on appeal includes the portions of State's Exhibit 4 in which Taylor discussed Thompson's statements as well as Taylor's direct testimony as to what Thompson told him concerning the accident.   Initially, we address the State's argument that appellant waived her Confrontation Clause complaint as to Taylor's direct testimony because she did not object at trial on that basis and preserved only a hearsay objection.   We disagree.   Appellant's motion to suppress encompassed both the direct testimony and the video, and the trial court overruled it in its entirety.   We conclude that the appellant preserved her Confrontation Clause challenges to testimony about Thompson's statement on the videotape and at trial by presenting these complaints in her motion to suppress and obtaining a ruling on her motion.   See Tex.R.App. P. 33.1(a).

C. Applicable Law and Standard of Review

The Confrontation Clause of the Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him [.]” U.S. Const. amend.   VI.¹ In accordance with this constitutional right, out-of-court statements offered against the accused that are “testimonial” in nature are objectionable unless the prosecution can show that the out-of-court declarant is presently unavailable to testify in court and the accused had a prior opportunity to cross-examine him.  Langham v. State, 305 S.W.3d 568, 575–76 (Tex.Crim.App.2010) (citing Crawford v. Washington, 541 U.S. 36, 59, 68 (2004);  Wall v. State, 184 S.W.3d 730, 734–35 (Tex.Crim.App.2006)).   One category of out-of-court statements that could be regarded as testimonial is comprised of 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.  Id. at 576.   As to this category, and in the particular context of statements made in response to police inquiries, such a statement is “testimonial” if the circumstances, viewed objectively, show that it was not made “to enable police assistance to meet an ongoing emergency” and “the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”  Id. (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)).

Whether a statement is testimonial or non-testimonial is a legal ruling that we review de novo.  Wall, 184 S.W.3d 742.   As the proponent of the out-of-court statements, the State had the burden to show their admissibility, that is, to show either that the statements were non-testimonial or, if testimonial, that the complainant was unavailable and appellant had been afforded a prior opportunity to cross-examine him.   See Crawford, 541 U.S. at 68.

We review an error in admitting evidence in violation of the Confrontation Clause under rule of appellate procedure 44.2(a), that is, we must reverse unless we can conclude beyond a reasonable doubt the error did not contribute to appellant's conviction or punishment.   See Tex.R.App. P. 44.2(a).   In reviewing whether the error in admitting out-of-court statements in violation of Crawford is harmless beyond a reasonable doubt, we consider:  (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.  Davis v. State, 203 S.W.3d 845, 852 (Tex.Crim.App.2006) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).   Courts may consider other factors as well.   See id.   But the relevant inquiry is whether there is a reasonable possibility that the Crawford 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[.]”  Id. at 853 (quoting Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App.2000)).

D. Discussion

It was undisputed Thompson was unavailable to testify at trial, and the State presented no evidence that appellant had been afforded a prior opportunity to cross-examine him.   Therefore, the statements would be admissible only if they were not testimonial.   See Crawford, 541 U.S. at 59.   Because the emergency of the vehicle crash was over and the investigation of it had begun, we conclude Thompson's statements to Taylor were testimonial.   Therefore, the trial court erred in allowing the jury to hear evidence of Thompson's statements to Taylor.   See Davis, 547 U.S. at 822;  Crawford, 541 U.S. at 59, 68;  Langham, 305 S.W.3d at 575–76.

Having determined the trial court erred, we must reverse unless we can conclude beyond a reasonable doubt the error did not contribute to appellant's conviction or punishment.   See Tex.R.App. P. 44.2(a).   Thompson's statements were important to the State's case because they directly contradicted appellant's account, and the State referred to Thompson's testimony, among other evidence, in closing argument.   However, the hearsay statements were cumulative of other evidence, specifically, Taylor's unobjected-to testimony that appellant admitted to him she was driving her vehicle.   See McNac v. State, 215 S.W.3d 420, 424–25 (Tex.Crim.App.2007) (no harm beyond a reasonable doubt when unchallenged evidence is cumulative of evidence improperly admitted under Confrontation Clause).

Other evidence included the videotape of the field sobriety tests and Taylor's and a hospital nurse's testimony they could smell alcohol on appellant's breath;  Taylor's testimony the accident was caused by unsafe speed on a straight road turning into a left curve;  his testimony the vehicle's windshield was cracked, the steering wheel was bent, and the seat belt had not been used;  admission of hair Taylor retrieved from the cracked windshield that was similar in color to appellant's;  Taylor's testimony appellant had scratches on her forehead and that appellant said her chest hurt;  and his testimony that appellant asked him whether, based on what he had seen at the crash scene, she should be in so much pain.

There was also testimony that a person involved in such an accident would display more injuries than appellant did;  appellant's testimony that she had been drinking earlier in the evening, and that someone must have stolen her vehicle and wrecked it while she was asleep;  and that her chest hurt because she was suffering from anxiety.

In light of all the evidence, including that outlined above, we conclude the State's case against appellant was strong.   On balance, we conclude there was no reasonable possibility that Thompson's testimony, “within the context of the entire trial, moved the jury from a state of non-persuasion to one of persuasion” on the issue of appellant's driving while intoxicated.   See id.;  Davis, 203 S.W.3d at 852–53.   Accordingly, we conclude beyond a reasonable doubt the error in admitting Thompson's hearsay statements did not contribute to appellant's conviction or punishment.   See Tex.R.App. P. 44.2(a).   We resolve appellant's single issue against her.

III. CONCLUSION

Having resolved appellant's issue against her, we affirm the trial court's judgment.

FOOTNOTES

FN1. Appellant included article I, section 10 of the Texas Constitution in her issue statement, but she has inadequately briefed that issue by not citing that provision in her argument and not directing any argument to it.   Accordingly, we do not address that provision.   See Tex.R.App. P. 38.1(h) (brief must contain “clear and concise argument” with “appropriate citations”);  Russeau v. State, 171 S.W.3d 871, 881 (Tex.Crim.App.2005)..  FN1. Appellant included article I, section 10 of the Texas Constitution in her issue statement, but she has inadequately briefed that issue by not citing that provision in her argument and not directing any argument to it.   Accordingly, we do not address that provision.   See Tex.R.App. P. 38.1(h) (brief must contain “clear and concise argument” with “appropriate citations”);  Russeau v. State, 171 S.W.3d 871, 881 (Tex.Crim.App.2005).

JIM MOSELEY JUSTICE