*1 DAVIS, Appellant, Edward Herbert Texas, Appellee.
The STATE of
No. 01-03-00801-CR. Texas, Appeals
Court of Dist.). (1st
Houston
April *2 its
pleading; the trial court abused him by denying discretion a mistrial. We affirm.
BACKGROUND Dailey, to Jeffrey complainant, planned May at the of spend beginning one week Inn pre- 2002 at Motel as he the Western final pared for his examinations at Houston On University of Law School. 4,May 2002, Dailey permitted an unknown to his motel room female enter after she his telephone. asked to in the use While room, telephoned the female someone and complainant’s room until this waited person Dailey arrived. After released the door, door chain and answered the five entered the This people seven room. punched Dailey, group people kicked him, bed, him on the cut threw the tele- room, phone in his and line threatened Dailey kill him a knife. later with testified during that smoked crack someone cocaine and that his robbery assailants stole car, watch, wallet, college ring, his and Houston, Crespin Linton, Michael for money gave from his bank account after he appellant. Soon, them PIN number. all his his Shirley Cornelius, District At- Assistant except appellant Dailey’s assailants left torney-Harris County, A. Rosen- Charles Appellant pocket motel held a knife room. thal, Jr., District Attorney-Harris County, Dailey’s throat and told him not Houston, appellee. for Appellant masturbating move. was and wearing appellant After fell a condom. Originally panel consisting submitted to Dailey asleep, quietly escaped motel of Chief Justice RADACK and Justices lobby. room and called from the motel KEYES and ALCALA. 5, 2002, a.m., at 1:52 May On Officer M. to a responded robbery prog- Romero EN BANC OPINION lobby. met Dailey ress. Romero RADACK, SHERRY Chief Dailey Justice. After told Romero his room num- ber, to Dailey’s Romero went motel room Davis, Herbert E. not appellant, pleaded appellant sleeping and found with a knife aggravated guilty robbery. The in his hand. guilty found him punishment and assessed years’ points at Appellant confinement. three testified while he was error, (1) appellant motel, crying contends that heard male voice he legally Dailey evidence is to support help. Appellant lying insufficient saw naked (2) conviction; his the trial court erred in back on the and flat on his floor excluding complainant’s Appellant Dailey civil court told that he motel room. information Dailey had no stay with him while someone else rob (2) robbery; Dailey testified that as is not credi- Appellant
left to call about the bed, Dailey placed appellant he he filed a lawsuit ble because Motel; (3) Appellant testified became exhausted. Inn sug- evidence Western he taken his that because had not second Dailey may gests that have invented day, passed out be- insulin shot his own activ- robbery questionable to hide glucose reaction. first cause of ity; Romero testified that Officer passing memory appellant has out any pipe” he did not find “crack being awakened Officer Romero. motel condoms in the room. Appellant’s complaints first three ask us *4 Sufficiency Legal the of Evidence by finding to the circumvent verdict error, point appellant his first of Dailey. more credible than appellant legally that the was insuf asserts evidence appel- jury, testimony heard which support Specifi ficient to his conviction. position in Dailey, lant and was the best cally, appellant contends that the State on determine who was more credible based prove beyond failed to a reasonable doubt court, in testimony their and demeanor the of that committed offense appellant and, jury’s will to the appeal, we defer aggravated robbery. credibility under these cir- assessment of aggra To establish the offense of v. cumstances. See Cain robbery, prove had to that the State vated (Tex.Crim.App.1997). 408-09 (1) committing in of appellant the course trial, presented At the the testimo- State (2) theft, with to obtain and main intent Dailey, ny Jeffrey complainant, of the the (3) property, knowingly control of and tain Dailey only the testi- witness to offense. (4) intentionally, placed or an threatened out a pulled fied that one of his assailants bodily injury in fear of imminent or other knife a three-to blade. Dai- with five-inch (5) death, and then and there used or that, ley upon out the pulling testified deadly weapon. exhibited Tex. Pen.Code knife, going told me kill “they they were 29.03(a) 2003). (Vernon § legal- Ann. that, they me.” also after He testified sufficiency requires us to deter challenge knife, kill him they with the threatened whether, the viewing mine after evidence watch, car, college wal- ring, stole his verdict, light most to the in the favorable let. trier could found any rational of fact have appellant in court as Dailey identified the essential elements of the offense be who part group of the men women King doubt. v. yond reasonable in his motel and robbed him attacked (Tex.Crim.App.2000); appellant was Dailey room. testified that (Tex. Howley v. beginning in his room from the motel App.-Houston pet.). [1st Dist.] also that Dailey testified attack. facts, judges As the exclusive left, stayed appellant assailants other may any all jurors believe or disbelieve knifepoint, kept Dailey the room and testimony. Penagraph of a witness’s part asked telling him not move. When (Tex.Crim. who person was sure did whether he App.1981). responded, appellant, Dailey this was Appellant contends that evidence “Yeah, for a fact.” him. that it’s know that he com- legally prove insufficient to asserts that Appellant’s complaint fourth aggravated robbery mitted offense of physical Dailey is not credible because appellant testified that he did because Admissibility testimony. Complainant’s evidence is with inconsistent his Petition Dailey testified that someone smoked error, point appel In his second during crack the robbery, appellant that lant contends the trial court abused its masturbating was after the other assail- by refusing discretion to admit into evi room, ants left the and that appellant was Dailey’s pleading dence civil filed his wearing a Although condom. Officer civil lawsuit the motel where Romero pipe did find a crack or a Appellant argues offense occurred.1 that room, condom in the motel Officer Romero Dailey he could not cross-examine about testified that he did not conduct an exten- any inconsistencies between the sive search of the motel room. To convict pleading testimony and his in-court appellant aggravated robbery, criminal Appellant argues case at bar. required prove State was not appel- Dailey’s pleading, which was made crack, masturbated, lant smoked or wore a Dailey’s attorney Dailey’s with authoriza condom. See Tex. Pen.Code Ann. tion, is admissible as an of a admission 29.03(a) (Vernon 2003). § Any inconsis- party opponent under Texas Rule of Evi tencies between testimony and 801(e)(2)(e). dence See Tex.R. Evid. *5 testimony Romero’s would not render the 801(e)(2)(c). legally evidence insufficient. We review the trial court’s de It is well established that a con termination admissibility of under an may viction be testimony based of a Montgom abuse-of-discretion standard. single eyewitness. State, Aguilar v. 468 (Tex. State, 372, ery v. 810 S.W.2d 379 75, S.W.2d 77 (Tex.Crim.App.1971); Lewis Crim.App.1990); Roberts v. 29 v. 575 (Tex.App.- 600 S.W.3d [1st 'd). Texarkana pet. ref The determi 'd). 2000, pet. ref The trial Dist.] court has nation of weight give what testimonial wide discretion in determining the admissi evidence is province within the sole bility of evidence and ruling its will not be jury, as it turns on an evaluation of credi long disturbed as as is “within the zone bility Cain, and demeanor. at S.W.2d disagreement.” Montgom reasonable 408-09. jury The is free to believe or ery, 810 at S.W.2d 391. trial court’s all any part disbelieve of the State’s ruling will if upheld reasonably sup be testimony. witnesses’ Id. A court of ap ported by any the record and correct on peals must show deference to such a theory of applicable law to the case. See finding. Id. at 409. (Tex. Willover Viewing the light evidence most Crim.App.2002). verdict, favorable to a rational trier of fact could appellant have found that com- party presents a trial When robbery mitted using while or exhibiting a proffer court with a containing evidence deadly weapon. Accordingly, we hold that both and admissible inadmissible state legally sup- evidence was sufficient to ments, proponent and the of the evidence port appellant’s conviction aggravated segregate specifically fails to and offer the robbery. statements, admissible the trial may court We overrule appellant’s point properly first all exclude of the evidence. error. Sauceda v. Petition,” Dailey's Original
1. appellate "Plaintiff's al- briefs as "Defendant’s Exhibit 10- A,” though marked at trial and to in the referred is not included in the record. plead- Willover, testimony and the des with his trial (Tex.Crim.App.2004); proof, appellant ing.3 After his offer at 847. complainant’s to introduce the attempted trial, attempted to appellant twice At non-hearsay statements made as pleading introduce, entirety, Origi- Plaintiffs in its aby person or a authorized agent an civil lawsuit Dailey’s nal Petition Evi- Texas Rule of under party-opponent The trial Inn Motel. against Western 801(e)(2)(c) (d), the trial dence objections court twice sustained State’s request. Tex.R. appellant’s court -denied pleadings in the were the statements (d). 801(e)(2)(c), trial court stat- Evid. com- they were not the hearsay because pleading admitting ed that Appellant plaining witness’s statements.2 attorney-client privilege would violate his proof an offer of concern- any later made oral and, therefore, sustain the court would antici- testimony appellant to which the admission of the objection concerning of the Texas response based on Rule 503 Dailey provide pleading pated Rules, of Evidence.4 Tex.R. Evid. possible inconsisten- questions regarding ahead. following objections to Go [Court]: 2. The State made the I believe that if I were counsel]: [Defense testimony: the trial Jeffrey Dailey have him read the call you I believe have testi- counsel]: [Defense and then 10[sic] State’s Exhibit contents of very you read 'the first time fied that them, concerning that he question him today, right? pleadings was inconsistent state- would admit there are plead- [Complainant]: I seen the No. have least, are attributed to him ments that ings before in his office. specifically to whether or not in relation said, "read.” [Defense counsel]: *6 during episode, this was ever unconscious front [Complainant]: I still have not read it there were specifically to whether or not as it; morning at and This I looked to back. actually attempts to assault several actual yes, But I never read some of it. have I him; “attempts” saying versus and I am morning back this that front to either read threats, he testified to threats. He has year ago. or a and a half attempt. That he actual testified to no it, your reading of did In [Defense counsel]: pleadings that testify those show that you whether or not— determine peo- these repeatedly well, that he saw he — honor, object hearsay and to Your I [State]: ones, smoking repeatedly crack ple, various improper impeachment. and relevance second, Judge. May just a I have cocaine. Sustained. [Court]: is one more. There State’s [sic] I will offer counsel]: [Defense (Pause) to counsel. and tender it 10[sic] Exhibit anything else? Was there [Court]: Honor, object to Exhibit Your [State]: Yes, Your Honor. Fur- [Defense counsel]: 10[sic], complaining witness' not the It is response my ques- to that he would in ther therefore, statement; hearsay. it’s and response my question would to tion as—in objection sustained. De- Your is [Court]: 10[sic] Exhibit answer that in Defense not in. fendant’s 10-A is actually people at- alleged that these has (Whereupon Exhibit 10-A Defendant’s those I believe tempted to murder him. admitted.) was not statements, with things to be inconsistent jury. this to before what he has testified proof: following Appellant offer 3. made position as fol- explained its trial court 4.The may prof- a Then I make counsel]: [Defense lows: fer, to what I would proffer, oral as an say going to anticipate talking if I’m not 503 as Basically he would about Rule we were general question witness concern- attorney/client privilege; to and be allowed privilege to refuse proffer? a client has rule is that person any other [complainant] prevent what disclose and Other than [Court]: disclosing copies of communications testimony? days two said for facilitating the Yes, purpose of made for the sir. counsel]: [Defense
361 Generally, hearsay not ground is admissible ex- exclude his own statement on the by cept provided untrustworthy. as statute or the rules of that what he said is Id. Hearsay evidence. 802. is party’s a own out-of-court state When Tex.R. Evid. statement, generally defined him, as a other against ment is “it offered would be by than one made the declarant while tes- object him incongruous permit most tifying at the trial or hearing, offered in by untrustworthy to it that it claiming is prove evidence to the truth of the matter not should be received because it was 801(d). Appellant asserted. oath, Tex.R. given not Evid. presence under claims, appeal, Dailey’s pleading that fact, subject the trier of to cross- hearsay under rule definition 801’s be- examination.” Godwin v. by cause it is an admission a party oppo- 387, [14th 801(e)(2). nent rule under See Tex.R. ref'd). 1995, statement, pet. to be Dist.] 801(e)(2). definition, By a statement Evid. admission, considered as an not nec does hearsay is not if the statement is offered essarily have to admit an of an element party by a and is made person offense. Perkins v. 902 S.W.2d by party authorized to make a state- ref'd). (Tex.App.-El Paso pet. ment concerning subject. Tex.R. Evid. The threshold issue is whether a com 801(e)(2)(c). plaining witness for the State can be a 801(e)(2),
Rule which criminal exempts “party-opponent” in a case under by 801(e)(2)(c). party opponent admissions from the Texas Rule of Evidence definition, hearsay that, recognizes par “a Willover this Court held that ty should not be allowed to exclude his complainant statements of a were admis own statement on grounds what sions “party-opponent” a criminal he said was untrustworthy.” and, such, Bell v. case not hearsay. as (Tex.App.-Dallas 676 (Tex.App.-Houston [1st Dist.] ref'd).5 pet. party 2000), If a to the suit made grounds, rev’d on other statement, there should be no concern (Tex.Crim.App.2002). The Court of about the statement’s reliability despite Appeals Criminal this reversed Court’s *7 the fact that it was opinion made out of court. Id. grounds on other and found it admissions, dealing When with the concern Appeals “need not address the Court of 801(e)(2) is not about the reliability and holding trustworthi that ‘when uses [Rule ] ness of an out-of-court statement. Bell v. by the term ‘admission party-opponent,’ State, 21, 877 24 (Tex.App.-Dallas includes those of the the defendant and ” ref'd). 1994, pet. Willover, Admissions are admitted complaining witness.’ party because a should not be allowed S.W.3d at 848 n. 10.6 768, professional legal rendition of services to [1st Dist.] client, n.r.e.). example, client between the writ ref'd lawyer representative lawyer. and his or dicta, Appeals 6. the Court of Criminal ruling complainant And I am that the can state; went on to stage assert that at this if he chooses to do However, we note that the other Courts of so. Appeals in Texas that have considered the issue, Pleadings 5. opposite in a civil action that are inconsis- have all reached the conclu- See, party’s position tent with a e.g., in another civil sion. Owens v. 916 S.W.2d 1996, writ) party (Tex.App.-Waco action are admissible as a admissions of 717-18 no ("The State, victim, opponent. party- St. Paul Fire and Marine Ins. Co. not the is the Murphree, v. opponent pro- 163 Tex. 357 S.W.2d of the accused in a criminal Texaco, Co., (1962); Pennzoil, ceeding.”); Inc. v. Halstead v. 891 S.W.2d Texas, complaining not the in has the State of holding Willover This Court’s witness. ground on the been criticized victim, party-opponent is the not the complainant that the now conclude We proceeding. in a criminal of the accused party a prosecution in is not a criminal
See, Logan v. e.g., 801(e)(2) and meaning of rule within the 'd). 2002, pet. ref Worth (Tex.App.-Fort contrary in by holding to the that we erred Willover, Ap the Second Court Since holding overrule Willover’s Willover. We State, contrary to Logan peals held party oppo- is a complaining that a witness Willover, that a holding this Willover, Court’s at 676. nent. See complainant a by a victim or statement in a by complainant a Because a statement under rule criminal case is not admissible criminal under rule case is not admissible 801(e)(2) by oppo party 801(e)(2), by per- an admission a as a statement made then to make a by complainant Id. nent. son authorized under rule is not admissible statement victim complaining witness is a crime 801(e)(2)(c). that the trial court We hold charges over what who has no control objection to sustained the State’s properly accused, brings against an who State Dailey’s pleading civil offer of appellant’s brings the State charges, State and when not an admission petition was because the Perhaps importantly, more charges. 801(e)(2)(c). rule opponent of a under party authority over the complainant plead- find that Because we offense, charges of the whether disposition hearsay, we contain inadmissible would sen- pursued, or what are dismissed admis- issue of whether do not reach the ultimately receives. tence defendant also be barred pleading sion charges against a may bring The State under rule by attorney-client privilege complaining though even defendant charges, pursue witness declines trial, point of appellant’s overrule second testify or testifies We refuses Similarly, at trial. error. behalf of the defendant desire complaining witness’s Motion for Mistrial dropped a defendant be
charges against
error, appel
charges
point of
legal effect on the State’s
In his third
has no
abused
that a
that the trial court
It is axiomatic
lant contends
against a defendant.
mo
denying appellant’s
or not to
authority
pursue
its discretion
party has the
alleges
Specifically,
charges
tion for mistrial.
charges, and to resolve
pursue
improperly commented
that the trial court
here is
party
a trial. The
with or without
*8
1994, writ)
party to the
11,
legal definition of
meet the
(Tex.App.-Austin
n.
12
1
action was not
("[W]e
role in the
complainant in a
case. His
the
conclude that
merely
charges, but
bring
against
party
or defend
a
within
prosecution is not
criminal
allegations.
testimony
the
801(e)(2)”).
provide
about
meaning
Those
the
of Rule
such,
party-oppo
he was not
majority
As
with the
decisions are in line
...”),
by
other
superceded
statute on
nent.
jurisdictions who have considered
other
Andersen,
State,
232
See,
in State v.
grounds as stated
566 So.2d
e.g., Goodson v.
issue.
(1989);
187,
People v.
(Because
1142,
(Miss.1990)
363 weight relief, pres of the evidence in the herself entitled to and does so in a jury. ence of the Appellant argues un- enough judge manner clear for the judge the trial took an position adversarial objection request derstand the at a against appellant in the presence of the position trial court in time when the jury implied that appellant engag was State, do it. something about Lankston v. ing in unethical illegal conduct when he (Tex.Crim.App.1992). 827 S.W.2d that,” told appellant, “You can’t do Appellant claims the trial court com- appellant asked a question. witness a weight mented on the evidence in The standard of for a review presence jury ap- when told trial court’s denial of a motion for mistrial that,” pellant, “You can’t do when appel- State, is abuse of discretion. Ladd v. 3 lant attempted Dailey questions to ask 547, (Tex.Crim.App.1999). 10-A, concerning Defendant’s Exhibit No. mistrial is a device used to halt trial pro copy Original a certified of Plaintiffs Peti- ceedings error prejudicial when is so pleading tion civil lawsuit expenditure of expense further time and Inn the Western Motel where the would be wasteful and futile. See Sewell v. offense occurred. State, (Tex.Crim.App. following The record reflects the ex- 1983). Thus, a trial may properly court change at trial between the State and com- exercise its discretion to declare a mistrial plainant Jeffrey Dailey: if reached, a verdict of conviction could be stop you [Defense but would Let me appeal counsel]: have be reversed on due to an procedural trying lawyer? obvious minute. You’re to be a error trial. Id. The determination of whether a Yes, [Complainant]: sir. given error necessitates a mistrial must be you Do [Defense counsel]: know how made examining particular facts of important it is to tell the truth? the case. Hernandez v. 805 S.W.2d document) (Looking at 409, 413-414 (Tex.Crim.App.1990). Yes, [Complainant]: sir. preserve
To a complaint for review, appellate a defendant must make a everything you [Defense And counsel]: timely, specific objection to the trial court. told this the absolute been Tex.R.App. 33.1(a); P. Rhoades v. truth? 934 S.W.2d 119 (Tex.Crim.App.1996). Yes, [Complainant]: sir.
A party’s object generally failure to waives you Nothing [Defense counsel]: have all error unless the preju statement is so lied about? dicial that no instruction could have cured [Complainant]: Not thing. one the harm. Higdon v. [1st Dist.] you [Defense counsel]: And didn’t lie to 'd). 1988, pet. ref The complaining party [attorney Mr. orig- Ellis who drafted the object must possible the earliest oppor petition Dailey’s inal ei- lawsuit] tunity ruling. and must obtain an adverse ther, you? did (Tex. Dixon v. *9 No, sir, [Complainant]: I didn’t he to Crim.App.1998). objection will be suf Mr. Ellis. preserve ficient to appellate error for re So those [Defense counsel]: two stories objection view if the communicates to the exactly should be the same? wants, trial judge objecting party what the why objecting party the thinks or [Complainant]: himself Yes. objection Appel- Okay. you day, Did tell was made.
[Defense counsel]: object not for an instruc- lant did ask approximately hours of them after two the disregard presence of tion to the with— struggling days after jury morning, until the next two the Approach Just minute. [Court]: time, trial court the incident.8 At this the bench, you. it please. Bring with com- jury disregard the to the instructed bench, attorneys the the approached As ment, appellant’s the court sub- denied bring to appellant the trial court directed motion for a sequent mistrial. reading from and the document was day objection trial was one Appellant’s comment, allegedly made the “You can’t do and, thus, late, ap- timely because too However, is not re- that.” this comment object possi- pellant did not at the earliest flected in the trial court record. opportunity. appellant ble We hold day, complained of appellant The next re- preserve appellate to failed error Al- judge’s alleged the trial comment.7 oc- the trial comment that view of court’s prosecutor trial though the court and the the allegedly presence in the of curred comment out- that the was made recalled jury. hearing jury of the after side the distance Accordingly, appellant’s we overrule bench, attorneys ap- had both reached the point third of error. made the judge insisted that the pellant in the jury comment when the was still CONCLUSION nevertheless, in- jury Appellant, box. the of the trial judgment We affirm to the trial of his intention formed court court. object presence jury in the the and ask jury to for an to the the court instruction requested, En banc consideration was disregard the trial court’s comment. majority voted for en the Court However, decision. again panel’s once the seated consideration of the jury was banc disregard and ac- Appellant’s objection, first was made the Court’s statements which calling allegedly at that day the tions in me to the bench comment was made, anything point in time and the Court said in was as follows: jury. regard presence to that in that, you counsel]: I will tell [Defense And you referring some- Since to [Court]: are that,” into can’t do did not make it “You you days ago, are thing that two occurred the record. jury’s memory as asking tome refresh the we that after [Court]: I remember I said were exactly were that to what words up hearing here were outside said, asking. you're I will which do if jury. No, something Judge, counsel]: [Defense I— Judge, you I will tell [Defense counsel]: jury should not occurred that believe the step about why. I was in mid in—I was they disre- it. I ask that know about that, right you and I was here when said shooting my- gard be it. I would seem to extremely surprised. And that’s the reason bell, re-ring so to in the foot self it, you it is not in I remember and I will tell telling speak, by it was. them what the record. just figure out how trying I’m [Court]: going what jury try to remember court, day objection after his to the trial 8. The the last— jury: objected presence appellant Judge, Simply, instruct counsel]: [Defense object ato comment [Defense counsel]: I them. Tuesday weight of that the Court on on the the evidence that were said [Court]:—words Tuesday Thursday all. being made the close of evidence afternoon. This remember, they brought counsel]: attention first If do [Defense that I the Court’s they disregard it. If thing Wednesday morning, please which I'm instruct them to don’t, problem. wouldn't asking be the Court to instruct *10 En pet. banc Court consists of Chief Justice (Tex.App.-Houston [14th Dist.] TAFT, NUCHIA, ref'd). RADACK and Justices
JENNINGS, KEYES, ALCALA, Willover, In this Court concluded that HANKS, HIGLEY, and BLAND. merely “technically” the State is or “nomi- JENNINGS,
Justice
concurring to the
nally” party.
a
at 676. At first
en banc decision.
glance, might appear
complaining
that a
witness,
ease,
in a
plaintiff
like a
JENNINGS, Justice,
TERRY
a
category
being
would fit into this
concurring.
However,
matters,
“party.”
unlike in civil
decisis,
Under the doctrine of stare
we
plaintiff
agents
which a
and his
are
previous holding
should overrule a
of this
clearly parties with control over their liti-
only
Court
for very important reasons and
gation,
complaining
witness is too often
after careful deliberation. After such de-
mercy
justice sys-
at the
of the criminal
liberation,
agree
with the en banc court
tem.
that we should overrule this Court’s hold-
inherently
Criminal cases are
different
State,1
ing in
Willover
which extended
A party
civil eases.
in a civil case
801(e)(2)2
Texas Rule of Evidence
“party”
case,
has control
a complain-
over
officials,
status from law enforcement
who
ing
not. A plaintiff
witness does
can de-
agents
are
to complaining
cide when
whom
to hue as counsel
witnesses, who are not.
and,
repre-
with the advice of counsel who
The main purpose
excluding
hearsay
him,
sents
when and how to
initiate
evidence is
unreliability
its inherent
in as-
plaintiff
lawsuit or settle it. A
has the
sisting the fact finder in ascertaining the
“
ability
give input
and make decisions
truth. There are essentially
‘hearsay
four
regarding
development, prosecution,
dangers’
faulty perception, faulty memo-
—
presentation
complain-
her case.
ry,
miscommunication,
accidental
and in-
simply
witness
a criminal case
does
sincerity.”
Guy
Olin
Wellborn III &
fact,
not have this control.
crime vic-
Herasimchuk,
Cathleen C.
Article VIII:
Legislature
tims are so different that the
Hearsay, 30 Hous. L.Rev.
statutorily
enacted certain “Crime vic-
(Texas
Handbook) (em-
Rules of Evidence
rights.”
tims’
See Tex.Code CRiM. Peoc.
added)
(footnote omitted).
phasis
We,
(Vernon
Ann. art. 56.02
Supp.2004-2005).
therefore, exclude from evidence various
Acknowledging
very
position
weak
presented
statements not
under controlled
justice sys-
crime victims in our criminal
courtroom conditions.
tem,
rights
adequate
these basic
include
An
by party
admission
opponent is not
protection,
property,
return of the victim’s
hearsay
considered
and is not excluded
requirements.
and notice and information
because “the
party
‘estopped’ from mak-
Id.
ing the ironic claim that his own remarks
are untrustworthy
brought
unless
Criminal actions are
“[i]n
made under the
by authority
ideal testimonial
name and
conditions.”
&
of the State of
Wellborn
Herasimchuk,
Hearsay,
Article VIII:
30 Texas.” TexCode CRiM. PROC. Ann. arts.
(Vernon 1989).
added); 21.02,
(emphasis
Hous. L.Rev.
21.21
This is no
see
legal
technicality.
Godwin v.
mere
fiction nor
801(e)(2).
1.
prosecutor holding. to overrule that complaining prosecu- decision not the witness. State, complain- tor not represents brought are Criminal cases witness. officers,
only investigation by peace and, cases, grand felony in
prosecutors, by roles
juries, clearly whose are defined See
statute. Ann. Crim. PROC. Tex.Code 2.01-2.26, 19.01-19.42, 20.01-20.22
arts. Crystal BOLER, Appellant, (Vernon Michele 1977 & Supp.2004-2005). v. an complaining witness is neither State, simply nor servant of the agent Texas, Appellee. The STATE witness, absolutely who has no control No. 01-04-00234-CR. case is over when and how a criminal Texas, For by the State. brought developed Appeals Court (1st Dist.). family violence example, sexual assault and Houston often, unfortunately, very re- victims are April an to come and initiate luctant forward 12, 2005. Rehearing May Overruled against partner, investigation spouse, Often, other these vic- parent or relative. Discretionary Refused Review give compelled by tims are the State Dec. 2005. whom against person upon statements in-
they completely depend. It would be to allow into
congruous such statements admissions party opponent
evidence as very they by are often made reluc-
when untrustworthy complainants
tant under
conditions. complaining not the
Because
witness, party opponent is fact the accused and the witness complaining agent agree
not an with court that statements
en banc out-of-court witness are complaining
made Rule State under
admissible
801(e)(2). v. Owens (Tex.App.-Waco pet.); no
717-18 11, 12-13 n.
Halstead 2A pet.); see (Tex.App.-Austin Al., Et Practice: Goode Texas
Steven Texas Evidence Handbook
Courtroom (2000). my As I dissent stated Willover, denial of en banc review inwas seri- contrary holding
this Court’s
Accordingly,
ous error.