LEFORD UTHEL OWENS v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

LEFORD UTHEL OWENS, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–10–00826–CR

Decided: November 15, 2011

Before Justices Moseley, Lang, and Myers

MEMORANDUM OPINION

Opinion By Justice Moseley

A jury convicted appellant Leford Uthel Owens of assault causing bodily injury to a person with whom he had or previously had a dating relationship.   In his sole point of error, Owens asserts that the trial court erred by admitting the complainant's out of court statements in violation of the Confrontation Clause of the Sixth Amendment.1  Having determined Owens suffered no constitutional harm because the jury heard the complainant's out-of-court statements, we affirm the trial court's judgment.

The background and facts of the case 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.

The Sixth Amendment's Confrontation Clause 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. This procedural guarantee precludes a court from admitting a witness's testimonial statements if the witness does not appear at trial, unless the witness is unavailable to testify and the defendant had a previous opportunity to cross-examine her.  Crawford v. Washington, 541 U.S. 36, 59 (2004).   Owens asserts his rights were violated during his trial when the State presented a video in which the complainant made allegations against Owens;  the complainant did not testify.   We need not determine whether the complainant's out-of-court statements violated Owens's confrontation right.   Rather, even if we assume that Owens had a right to confront the complainant, we conclude Owens suffered no constitutional harm.   See Van Devender v. Woods, 222 S.W.3d 430, 432 (Tex.2007) (“Judicial restraint cautions that when a case may be decided on a non-constitutional ground, we should rest our decision on that ground and not wade into ancillary constitutional questions.”).

Owens and his girlfriend, Aquanetta Keel, were fighting in a parking lot and the police were called.   Officer Mark Wood of the City of Sherman Police Department arrived at the scene in a squad car equipped with a dashboard video camera.   The video shows Owens talking to Wood and Keel yelling at Wood about what occurred in the parking lot.   The audio is poor and Keel's words are nearly indecipherable.   Based on our review of the video, the parties' briefs, and the trial court's conclusions, we conclude that Keel accused Owens of attempting to perform a sexual act, presumably without her consent.2  The State presented portions of the video to the jury, including Keel's apparent accusations of sexual impropriety.   Because Owens was not charged with sexual assault, he believes Keel's allegations prejudiced the jury.

A Crawford error is constitutional error, which is subject to a harm analysis under rule 44.2(a).   See Tex.R.App. P. 44.2(a);  Langham v. State, 305 S.W.3d 568, 582 (Tex.Crim.App.2010).  Rule 44.2 provides that “the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.”  Tex.R.App. P. 44.2. See also Woodall v. State, 336 S.W.3d 634, 639 n.6 (Tex.Crim.App.2011).   When addressing whether a Crawford error is harmless beyond a reasonable doubt, a court considers:  (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 State's case.   See Davis v. State, 203 S.W.3d 845, 852 (Tex.Crim.App.2006).   The court should consider, in light of the other evidence, “the likelihood that the constitutional error was actually a contributing factor in the jury's deliberations in arriving at that verdict․”  Langham, 305 S.W.3d at 582 (quoting Scott v. State, 227 S.W.3d 670, 690 (Tex.Crim.App.2007)).   In determining whether the Crawford error was harmful, we also consider “the source and nature of the error, to what extent, if any, it was emphasized by the State, and how weighty the jury may have found the erroneously admitted evidence to be compared to the balance of the evidence with respect to the element or defensive issue to which it is relevant.”  Id.

Applying Langham, we conclude any denial of Owens's Sixth Amendment rights resulting from playing the tape to the jury did not contribute to his conviction, and he suffered no constitutional harm.   The video was not central to the State's case.   The audio is nearly unintelligible, the jury did not receive a transcript of the audio, no witness testified about what occurred on the video, no witness testified about whether Owens sexually assaulted Keel (or attempted to), and the jury did not ask to review the video after beginning deliberations.   Additionally, the State did not discuss Keel's recorded statements during the trial, reference any allegations of sexual misconduct in its opening or closing argument, or ask the eye witnesses whether they saw Owens attempt to sexually assault Keel. The State presented no evidence to corroborate Keel's apparent allegations of sexual assault, and Keel's apparent allegations in the video did not affirm or rebut any other evidence offered.   Rather, the State's presentation focused on whether Owens assaulted Keel, particularly whether Owens slammed Keel's head into the concrete parking lot.

To prove that Owens assaulted Keel, the State provided testimony from three eye witnesses who stated that they saw Owens pound a woman's head into the concrete parking lot-testimony that Owens concedes (in his brief) “quite sufficiently proved that Appellant ․ and his girlfriend/”victim,” Aquanetta Keel, ․ assaulted each other.”   Reviewing the record de novo, we find beyond a reasonable doubt that-whatever Keel said in the video-it did not contribute to the jury's verdict.   See Scott, 227 S.W.3d at 690.   Finding any Crawford error here harmless, we overrule Owens's sole point of error and affirm the judgment of the trial court.

Although Owens does not bring a point of error challenging whether the trial court improperly admitted the video under an exception to the hearsay rules, both parties argue the issue in their briefs.   Neither party challenges whether Keel's statements in the video are hearsay;  they disagree about whether those statements are excited utterances and admissible under rule 803(2).   See Tex.R. Evid. 803(2).   For the same reasons Owens's Confrontation Clause challenge fails, any challenge to the video as hearsay fails:  even if the statements do not fall within an exception to the hearsay rule, Owens suffered no constitutional harm because the jury viewed the video.   See, e.g., Cardenas v. State, 971 S.W.2d 645, 651–52 (Tex.App.—Dallas 1998, pet. ref'd).

The judgment of the trial court is affirmed.

FOOTNOTES

FN1. Owens only raises a federal constitutional claim based on the Sixth Amendment;  he does not raise a similar claim under Texas law.   See Flores v. State, 245 S.W.3d 432, 436 n.9 (Tex.Crim.App.2008)..  FN1. Owens only raises a federal constitutional claim based on the Sixth Amendment;  he does not raise a similar claim under Texas law.   See Flores v. State, 245 S.W.3d 432, 436 n.9 (Tex.Crim.App.2008).

FN2. We viewed the video several times and could not discerned exactly what Keel said.   When the trial judge viewed the video, he asked counsel:  “Where [Keel is] standing back by the car, and she hollers—I couldn't really make out exactly what [Keel] was saying, but it had something to do with [Owens] tried something sexual, right?”   Defense counsel responded “[t]hat's correct.”   We agree the video is extremely difficult to understand and it may show Keel accusing Owens of attempting to perform some sexual act..  FN2. We viewed the video several times and could not discerned exactly what Keel said.   When the trial judge viewed the video, he asked counsel:  “Where [Keel is] standing back by the car, and she hollers—I couldn't really make out exactly what [Keel] was saying, but it had something to do with [Owens] tried something sexual, right?”   Defense counsel responded “[t]hat's correct.”   We agree the video is extremely difficult to understand and it may show Keel accusing Owens of attempting to perform some sexual act.

JIM MOSELEY JUSTICE

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