Ward, Jeffrey Lynn
WR-38,681-02
Tex. App.Apr 13, 2015Background
- Defendant Jeffery Lynn Ward was convicted by a jury of two counts of aggravated sexual assault and one count of possession of child pornography arising from alleged assaults of two minors (J.S. and T.B.).
- During trial the seven‑year‑old witness T.B. repeatedly refused or said she could not answer questions about the assault and was found "unavailable" under Tex. R. Crim. Evid. 804.
- The State sought to admit T.B.’s prior testimony from a bond‑revocation hearing; defense counsel initially objected but later consented to admission after discussion about excising references to prior convictions.
- Ward appealed, arguing (1) the bond‑hearing transcript was inadmissible hearsay under Rule 804(b)(1) because the defense lacked a similar motive to develop testimony at the bond hearing, (2) its admission violated the confrontation clauses of the U.S. and Texas Constitutions, and (3) objections were preserved.
- The Court of Appeals (12th Dist.) reviewed whether T.B. was "unavailable," whether the prior testimony fit the Rule 804(b)(1) exception (similar motive/opportunity), confrontation‑clause constraints, and whether Ward waived appellate review by consenting at trial.
Issues
| Issue | Plaintiff's Argument (Ward) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Admissibility of prior bond‑hearing testimony under hearsay exception (Rule 804(b)(1)) | Bond hearing had different purpose; counsel lacked a similar motive there to develop T.B.’s testimony | Bond hearing centered on whether Ward committed the alleged assaults while on bail; counsel had opportunity and a similar motive to develop testimony | Admission was within trial court discretion; Rule 804(b)(1) satisfied (no abuse of discretion) |
| Confrontation Clause (state & federal) | Using prior testimony without live cross violated right to face‑to‑face confrontation | Prior testimony fits a long‑standing hearsay exception; reliability and unavailability satisfied; Supreme Court allows flexibility to protect child witnesses (Maryland v. Craig) | No Confrontation Clause violation; prior testimony is a firmly rooted exception and admissible |
| Waiver of objection | Ward contends admission was erroneous and preserved earlier objections | Defense expressly consented to admission of the transcript (after discussing redactions); no contemporaneous objection at time of admission | Any objection was waived by defense counsel’s later statements and failure to object when transcript was admitted |
| "Similar motive" requirement under Rule 804(b)(1) | The bond hearing’s bail‑determination purpose is not similar enough to a trial on the merits | Similar motive exists because the central factual issue—whether Ward committed the assaults—was the same and counsel sought to rebut those allegations in both proceedings | The court found the motive substantially similar; prior testimony admissible under Rule 804(b)(1) |
Key Cases Cited
- Coffin v. State, 885 S.W.2d 140 (Tex. Crim. App. 1994) (similar motive/opportunity standard under Rule 804(b)(1))
- Maryland v. Craig, 497 U.S. 836 (U.S. 1990) (state interest in protecting child witnesses can justify limiting face‑to‑face confrontation)
- Ohio v. Roberts, 448 U.S. 56 (U.S. 1980) (unavailability plus indicia of reliability/firmly rooted hearsay exceptions for confrontation analysis)
- Potts v. State, 14 S.W. 456 (Tex. 1883) (prior testimony as an established exception to hearsay)
- Babers v. State, 834 S.W.2d 467 (Tex. App.—Houston [14th Dist.] 1992) (failure to object waives hearsay complaint on appeal)
- Cofield v. State, 857 S.W.2d 798 (Tex. App.—Corpus Christi 1993) (confrontation‑clause claims waived if not timely objected to at trial)