*1 based on permit decision that denied regulation of and the resources natural factors safety of such traffic industry. See id. consideration gas the oil hauling saltwater 27.051(b). to consider trucks TCEQ presence is directed § believe, factors, added to which is I neighborhood roads. list of on narrow a similar a mandate language provision: crucial contrary, one that the statute’s to the safety granting traffic TCEQ consider interpreta- such an preclude and context 27.051(a)(6). § Id. permits. well injection there is matter of law. Because tion as a is two- provision of this significance The here, and for deference legitimate no role First, intended Legislature fold. had consideration prohibits the statute traffic to consider for the Commission deci- safety in Commission’s of traffic wells, it would permitting safety factors I concur injection permits, issue sion to language express same have included the judgment. the Court’s as it did charges the Commission’s among Second, portion TCEQ’s. among TCEQ, with unlike dealing
the statute Commission, contains
dealing with the inter- “public of the term definition
partial in- considering public TCEQ, in
est.” consider, be
terest, but shall not “shall consideration of’ several to the limited WOODALL, Phyllis Appellant, Anne protection of natural bearing on factors Id. and the environment. resources 27.051(d). to consider § The directive of Texas. The STATE of that safety part is not made traffic suggests This inquiry. interest public No. PD-1379-09. TCEQ required even as it Legislature, Appeals of Texas. of Criminal factors, did not safety traffic consider part of a consider- inquiry to be want that March Rather, public interest. public ation interest, gov- in the context of statute Commission, TCEQ and the
erning both of factors consis-
limited to a consideration “to main- chapter’s purpose:
tent with of fresh water in the state quality
tain the public extent consistent with
to the operation welfare and
health and industries, taking into consider-
existing development of the
ation the economic §Id. 27.003.
state.” interpreta- agency not defer to
We do Although I unambiguous
tions of statutes. that it need
agree with the Commission safety permitting when
not consider traffic wells, chapter 27
injection I do so because prin- requires. so
of the Water Code holding re-
ciple Court’s behind deference to a future Commission’s
quire *2 punish- for a new trial on issue
case No. 08-07-00015- ment. Woodall Tex.App. CR, 2009 WL *3 Sept. Paso (Tex.App.-El LEXIS 7112 2009) (not publication). We designated for Ap- determine whether granted review to violat- rights confrontation pellant’s of reverse the court ed. willWe Appel- consideration of and remand for of error. remaining point lant’s
I. FACTS an adult-enter Naked Harem was The Paso where in El establishment tainment. charge cover to enter and patrons paid a dancing women nude. to be entertained of operator a co-owner and Appellant was out of acts nightclub. This case arises regular on a prostitution of that occurred Appellant was indicted basis at the club. Austin, Botsford, Appellant. for David L. aggravated promotion count of of for one Darnold, D.A., Paso, El A. Asst. Tom (Count I) and four counts of prostitution Horn, Attorney, L. Jeffrey Van activity organized in criminal engaging Austin, for State. (Counts II-IV).1 proceeded The State II the indictment. Woo trial on Count of
OPINION dall, Tex.App. 2009 WL LEXIS 7112. MEYERS, J., opinion of delivered KELLER, P.J., Court, and in which trial, of the State During guilt phase COCHRAN, KEASLER, HERVEY, and dancers, managers, called several former JJ., joined. Generally, the patrons and of the club. that the club’s official testimony count of indicated Appellant was indicted one was al- was that no sexual contact prostitution policy aggravated promotion club, (Count I) anywhere including in the engaging lowed and four counts II-IV). (Counts rooms, for the but it was common activity private criminal organized acts with the engage II of dancers to sexual proceeded The State to trial on Count dancers testimony The jury patrons. The found the indictment. in sexual engaged and who had guilty, Appel- patrons the trial court sentenced club, in the as prostitution acts and well jury’s lant in accordance with the assessed testimony physical evidence con- years’ confinement and a other punishment of 16 activi- $10,000 necting Appellant prostitution to the Ap- fine. The El Paso Court of club, is summarized in the court ties at the peals affirmed the conviction *1-3, 2009 court, appeals’s opinion. remanded the but it reversed and the criminal combination. Appellant, partner, and four as members of her business managers were named in the indictment club LEXIS 7112, Tex.App. at *3-8. The State lant remaining discussed the evidence she calling its case-in-chief without Lu rested might introduce and the represented dancer, Pinedo, testify. cia a former it going that was not have rebuttal jury evidence. The was then excused for case-in-chief, Appellant presented In her evening. of several dancers who stat- it policy ed was club that no sex was day, The next Appellant offered three allowed the club and who claimed not to documents into evidence and then rested. engage prostitution in acts of at the club. rebuttal, in its attempted to *4 Appellant also in her own testified defense recall Pinedo to the stand. Because she in an attempt distance herself from the was not inside or outside of the prostitution activities the club. Follow- courtroom, the proposed State to read Pi- her ing testimony, Appellant own called grand nedo’s jury testimony to the trial testify Pinedo to as a defense witness.2 jury past recollection recorded under 803(5). Texas Rule of Evidence Appellant During by direct examination Appellant, objected First, grounds. two she ar- Pinedo testified that she had been in a car gued that the testimony was not admissi- age eighteen accident at the and suf- as past ble recollection recorded because specifically fered loss. She stated the State had not proper predi- laid the although she had been told she Second, cate. she contended that the tes- Harem, danced at the Naked she did not timony would deny Appellant her right to remember it. She also asserted that she confrontation and cross-examination —she testifying did remember before the would not have to question grand jury, but she had been told that she Pinedo about discrepancy between her had done so. On by cross-examination grand jury testimony she used her again Pinedo affirmed that she did card, school ID which did not have her dancing not remember at the Naked Har- age, to employment and a manag- obtain em or testifying grand jury. before the testimony er’s that a birth certificate was Testimony also indicated that Pinedo was instead. The trial shown court offered to years old when she danced at presence secure Pinedo’s with a writ of Naked Harem. At the conclusion of Pine- attachment, Appellant but declined be- cross-examination, do’s there was no re- cause it would be a futile act due to Pine- direct by Appellant. examination memory.3 do’s lack of Consequently, the time, At that the trial court asked if trial court Appellant’s objections overruled Pinedo could be “permanently excused.” and allowed the State read into evidence The requested State that she be kept un- 57-page transcript of Pinedo’s recall, subpoena der possible for so before jury testimony. excusing her “temporarily,” the trial court instructed building Pinedo remain in the The was similar to testimony in case her was needed on that of the other dancers called day or the next. Subsequently, a bench as witnesses the State. Pinedo stated held, conference was during Appel- which that although she was told no sex was 2. The record Appellant points shows that the State had in- out that the State did not formed defense counsel that Pinedo had suf- request ask for attachment or a continuance fered loss and did not remember or recess. However, dancing at the club. counsel indi- cated he that was not aware of the full extent damage. of the brain
allowed,
began by properly
The court
had sex and sexual contact
she
setting
several occasions
forth the
standard
patrons on
with
Crawford
analyzing
at the
She also al-
issues.4
club.
Confrontation Clause
private rooms
Washington,
See
541 U.S.
patrons to touch her breasts and
lowed
Crawford
(2004).
floor
lap dances on the
attachment. The court that a determined II. OF APPEALS COURT writ of attachment would have been fu- On appeal, point tile—it Appellant’s eighth changed of would not have the fact error argued that the of admission Pine- Pinedo was absent because of her grand do’s violated of jury Subsequently, loss. the court El Paso appeals Confrontation Clause. The held that the admission of Pinedo’s Woodall, Appeals agreed. WL violated the Confron- 2872837, 2009Tex.App. LEXIS 7112. tation Clause as set forth Crawford. See Part IV. Caselaw. ment” is considered unavailable as a witness. infra 804(a)(3). Tex.R. Evid. 5. A "testifies witness who to lack subject matter of the declarant’s state- Pinedo’s loss made her unavail- new trial on the punishment. issue of able, “Appellant and . never had—and Based on the resolution of point this not have had—an error, appeals court of did not address regarding grand cross-examine Pinedo point error, the seventh which com- jury testimony,” even Pinedo returned to plained that Pinedo’s jury testimony *5, court. Id. at 2009 Tex.App. LEXIS erroneously admitted under the past 7112, at *14. recollection hearsay recorded exception.
Next, granted the court of conduct We petition State’s for dis- analysis. ed a harm articulating cretionary After review challenging the court of error, analyzing appeals’s standard for holding Appellant’s constitu- Crawford consider,6 including the four factors to tional to confront the witnesses against court held that the error was harmless as her was Specifically, violated. guilt phase but harmful as to the ground for review stated the fol- *6-7, punishment phase. lowing: 2009 Tex.
App. LEXIS at *15-18. It conclud The Court of Appeals con- erroneously grand jury ed statement did cluded that witness Pinedo’s memory not contribute to the conviction because it loss rendered her “absent” from Woo- was cumulative of-the former dancers’ tes trial, dall’s even though Pinedo had been timony, and even if the testimo testify by called to and in fact Woodall excluded, ny legally the evidence was appeared and testified at Woodall’s trial. *6 support sufficient to a conviction. But the And because Pinedo was not “absent” same punishment could not be said at the trial, from Woodall’s Ap- the Court of phase. The court alleged stated that the peals further erred in holding that the acts of prostitution “explosive child were admission of prior grand-jury Pinedo’s likely significant and had a impact on the testimony implicated the Confrontation jurors.” *6, minds of the 2009 Tex. Clause and right violated Woodall’s to Also, App. LEXIS at *16. the court confront the against witnesses her. noted that no other child witness testified at trial and that the State sought a harsher III. ARGUMENTS OF THE PARTIES
punishment apol never A,. Argument ogized for allowing prostitution child occur. Accordingly, the court of appeals argues The State ap- that the court of judgment affirmed the of the peals trial court erred in ruling that Pinedo’s confron- but and reversed remanded the case for a rights tation implicated because it were (1) error importance hearsay is constitutional error sub The of the state- Crawford ject analysis case; to a harm under Texas Rule of ments to the State’s 44.2(a), Appellate provides Procedure which (2) hearsay Whether evidence was cu- appeals that "the court of must reverse a evidence; mulative of other judgment punishment of conviction or unless (3) presence The or absence of evidence beyond the court determines a reasonable corroborating contradicting hearsay or doubt that the error did not contribute to the points; on material and punishment"). Langham conviction or v. (4) strength prosecution’s The overall State, 305 S.W.3d (Tex.Crim.App. case." 2010). We have established that "courts re State, (Tex. Davis 203 S.W.3d viewing admitting whether the error out-of- Crim.App.2006). court statements in violation of Crawford beyond harmless a reasonable doubt should consider: Hence, the memory loss. on the was “ab- witness’s that Pinedo
incorrectly concluded
that,
is,
by
according
prece-
trial;
memory loss
maintains
from
sent”
subject
dent,
trial and
not render
at
loss did
present
witness
does
by the defendant
Pinedo was called
cross-examination
“absent” from trial.
her
for
“absent”
Con-
the witness
trial,
render
an-
not
Appellant, appeared
by
purposes.
Clause
frontation
of her
to the best
every question
swered
was
ability,
the Confrontation Clause
so
court of
contends
The State
Pine-
by the admission of
implicated
not
proper
standard
forth
appeals set
prior grand jury statement.
do’s
incorrectly applied
it then
analysis, but
that the
asserts
The State
that standard.7
tempo
asserts that
Finally, the State
analy-
confused the
commingled
court
support a
absence cannot
rary physical
“absent” from
Pinedo was
of whether
sis
violation here be
Confrontation
separate
with
trial under Crawford
cause,
physically
not
although Pinedo was
“unavail-
Pinedo was
analysis of whether
jury testimony
when her
Rules
under the Texas
as a witness
able”
subject
admitted and she was
argues that the
The State
of Evidence.
ab
by Appellant, her
further examination
being
so
un-
equivalent,
are not
two tests
have been remedied.
sence could
804(a)(3)
Rule
under
available as a witness
that Pinedo’s absence was
State insists
being absent from
equivalent
is not the
express re
wholly
Appellant’s
caused
by the Confrontation
contemplated
trial as
brought
her attached and
fusal to have
Further,
that the
State insists
Clause.
art.
into court. Tex.Code Crim.
Proc.
cited and relied
three cases
Thus,
Ap
according to the
24.12.
from
distinguishable
are
court of
opted not to exercise
pellant
little,
any, support
provide
this case and
estopped
be
confront and should
was “ab-
that Pinedo
for the conclusion
rights
that her constitutional
complaining
trial.
sent” from
violated, analogizing this to Morales
*7
addition,
argues that the
In
the State
(Tex.App.-Corpus
where a defendant has a
limited
to had not shown Pinedo to be unavailable
recross-examination when a new matter is
and Appellant did-not have a prior oppor-
brought out on re-direct examination. See
tunity to cross-examine.
(11th
Ross,
United States v.
examination on new material but to
recross-examination
same material
The Confrontation Clause of the
*8
Clause”)
violates the Confrontation
and Sixth
provides
Amendment
all
“[i]n
(4th
Caudle,
United States v.
642 568, (Tex. ham v. 305 S.W.3d 576 depositions parte or ex affi- prevent Crim.App.2010). admit-
davits, as were sometimes such cases, being against used ted in civil in lieu of ex- personal a prisoner V. ANALYSIS cross-examination of and
amination
Crawford,
In accordance with
we must
in which the accused has
the witness
first
whether the
determine
Confrontation
only
testing
not
opportunity,
an
in this case
implicated
Clause is
before
sifting
and
conscience
recollection
deciding
guarantee
constitutional
if the
witness,
of compelling
but
him
is,
violated;
was
that we must decide if the
jury
face to face with the
to stand
grand
out-of-court
statement —Pinedo’s
him,
may
they
look at
and
order
jury
by a
testimony
made
witness
—was
the stand
upon
his demeanor
judge
if such
absent from trial and
statement
gives
in which he
his
the manner
in nature. The
and
was testimonial
he
testimony
worthy
whether
is
that Pinedo’s
agree
See Crawford,
is testimonial.
belief.
68,
However,
1354.
643
respect
ny.”
21-22, 106
loss at trial of a witness with
to a
Id.
Still,
S.Ct. 292.
prior, out-of-court statement could result Court
left unanswered
question
in a
violation of
Confrontation Clause
“whether there are
in
circumstances which
decision,”9
“not ripe
for
Justice Har
a
lapse
witness’
of memory may so frus
lan, in a concurring opinion, opined that a
-
trate
opportunity for cross-examina
memory
witness’s lack of
should have no tion”-that the Confrontation Clause is vio
consequence.
Sixth Amendment
Id. at
20,
lated.
Id. at
9. The Court found no Cal.Rptr. constitutional violation 3 Cal.3d 479 P.2d 1003-04 (1971). preliminary hearing admission testi- Green, 165-68, mony. 399 U.S. at requirements Supreme distinguished 1930. The 11.The of the Court the issue Confrontation defendant, open Clause were of Fensterer from that left satisfied because Green be counsel, represented by only cause opportunity had the the latter involved the introduction Fensterer, prior, pre- to cross-examine the trial out-of-court witness at the statement. However, liminary hearing. U.S. at Id. S.Ct. 292. in a concurring opinion, Justice Stevens under remand, Supreme 10. On question of Califor- stood the unanswered in Green to be nia' held the defendant’s similar to the main issue in Fensterer — while forgetful cross-examine the witness at trial Green involved an out-of-court statement and requirements statement, satisfied the Confronta- loss the witness of the *10 tion Clause because the witness testified at Fensterer concerns an out-of-court conclusion "adequate" trial and the defendant memory had an and loss of the for that basis conclu Green, 23-24, question People him. v. sion. S.Ct. 292. 106 644 prior of her pre-Crawford, are remember details these cases
Although
police.
statements to
nor under
overrules
neither
Crawford
fact,
line of cases.
In
mines
Owens
be
agree with those cases and
We
ap
state courts have
federal and
several
render a
memory
lieve that
loss does not
claims
based
Owens to
plied
Crawford
“absent” for Confrontation Clause
witness
See,
e.g.,
loss.
Yanez
witnesses’
present
is
in court and
purposes
she
(8th
958,
Minnesota, 562 F.3d
962-65
v.
Pinedo been
testifying. Consequently, had
721,
U.S.,
Cir.2009);
959
v.
A.2d
Blunt
testifying
called
present and
when she was
(D.C.2008); Felix v.
379
Mayle,
727-31
as a
witness and
the State
rebuttal
(9th Cir.2004),
612,
rev’d on
617-18
F.3d
testi
when
read her
the State
Felix,
v.
Mayle
545 U.S.
grounds,
other
evidence,
have
mony into
she would not
2562,
644,
When the State moved to introduce Pine- Judge, practical [APPELLANT]: evidence, do’s into problem I have is that I cannot cross Appellant objected on Confrontation examine the grand jury testimony when grounds. Appellant’s objection they have contradictory introduced testi- brought to the court’s attention the possi- mony from their own witnesses. And ble confrontation errors that could arise it’s irrelevant to call hér she will reading into evidence simply say I’m assuming that —unless when the -witness was not physically pres- she’s had a miraculous recovery and, thus, ent in court not subject to cross- THE COURT: Well— Hence, examination. as the record re- accident, had an [APPELLANT]: —I veals,-the judge offered to issue a writ and I don’t remember nothing. bring of attachment to Pinedo into court so You problem. [STATE]: created this would have the opportunity THE Right. Right. COURT: It wasn’t to cross-examine the witness about her by anyone created you, but Mr. Gibson. grand jury testimony. Appellant, But In honesty, [APPELLANT]: all some- counsel, through expressly declined the body mumbled something that proposed solution. following exchange said, remember anything. I doesn’t place response took to Appellant’s ob- ‘Yeah, right.” I snapped But never jections: the fact that she had been in an automo- that, THE COURT: The cure for I will bile accident and has effected brain allow under writ it and of attachment damage. I’m not saying they didn’t tell bring her you back and allow to allow— me— questions you ask her whatever need in THE given you COURT: I’ve op- your reply. Sir, tion. I give will out the writ —issue Judge, prob- [APPELLANT]: but the you attachment on her if want says lem is she she doesn’t remember bring her back in to cross examine her. anything, as we day. had the other So you Are saying, no? You don’t want— we’re stuck with the situation where I no, saying I’m [APPELLANT]: Your person— cannot cross-examine a Honor. It would be a useless exercise Well, sir, THE I you COURT: mean futility. her, created this quagmire by calling sir. sir, THE Okay, very COURT: well. prior you You were told calling her going that she wasn’t any- light to remember In exchange, the above it is So, thing. your response to this inabili- evident judge that the trial offered to at ty to cross-examine—I have presented, remedy tach Pinedo so as Appellant’s reflect, let the objection record -writ of attach- reading testi , that, you ment. If mony want me to issue I being into evidence without her now, will knew, issue it and she can present. judge clearly be As the hopefully here as possible., testifying soon and witness before a grand jury duly 13. "When a ... witness has been served tied to have an issued forthwith attachment subpoena appear testify with a for such witness." Tex.Code.Crim.Proc. art. proceeding ap- criminal or action fails to so 24.12. pear, the State or the defendant shall be enti- *12 646 that his con by complaining appeal on the from to cross-examination subject
not State, because he rights were violated Moczygemba v. 532 frontation accused. right that when he 636, (Tex.Crim.App.1976). So not to exercise opted 638 S.W.2d of all statuto advantage witness’s testi- not to take jury chose of a admission can lead for cross-ex to subsequent rily opportunities a authorized mony at amination); State, witness is 850 S.W.2d that Mann v. problems confrontation declined the 740, Appellant (Tex.App.-Houston [14th Dist.] 742 not available. 'd) Pinedo into bring 1993, although to (determining invitation ref that pet. court’s Thus, the Appellant induced al- failing sign court. to by trial court erred a the complains, now of which she leged error obtaining not stipulate to and consent appeal that her may argue not on she right waiver appellant signed from the a violated rights when confrontation witnesses, in appellant the to confront testimony was read Pinedo’s to stipulated error he the the where duced into evidence.14 about the complain and failed to evidence defects, to attorney and where his tried cut that to situation is similar
This presentation of evidence short the (Tex. State, 491 225 S.W.3d Druery v. judicial take then asked the court to appellant the in which Crim.App.2007), presented notice of evidence error, specifi jury charge of a complained hearing, representing he suppression include the lesser- cally that the failure to of the motion only appeal denial amounted offense instruction to included suppress).15 ap held that fundamental error. We such estopped bringing from was pellant cases, Ap- in those Like the defendants reflected that he because record claim this Con- estopped bringing pellant “affirmatively judge the trial advised appeal frontation Clause claim on because on the lesser- charge not desire a he did she now she induced error of which offense,” inducing the thereby er included complains. he complained. ror of which VI. CONCLUSION similarly. ruled appeals have Courts appeals holding The court of erred 222 143-44 S.W.3d See Morales ( loss rendered her pet.) no Tex.App.-Corpus Christi pur- estopped was for Confrontation Clause (holding appellant “absent” necessary concurring Judge pert Price was to assist opinion of not 14. The has Then, argued the issue here in terms of waiver. jury.” appellant couched Id. at 624. not a waiver did This is appellate expert testimony court that such situation — right Ap- Pinedo. waive her to confront necessary jury was aid the "the objected pellant introduction of to the beyond experi jury's issue was common on her based confronta- Applying Id. the doctrine of invited ence.” rights, declining and in the court's offer tion error, appellant the court of held that attachment, simply a writ of told to issue appeal. See could not raise that issue on also the court continue. Hosp., v. Texarkana Mem'l 747 Birchfield (Tex.1987) (holding that S.W.2d applied in 15. Invited error also been simi has appellant appeal complain could not civil context. lar circumstances in the For hearsay expert an witness recounted conver Corp. v. example, in Corrections de Wackenhut expert invited to because the "was err sations Rosa, (Tex.App.-Corpus la S.W.3d 594 telling ‘go him to defendant's counsel pet.), appellant had no con Christi explain apparent inconsistency ahead' and an expert vinced the trial court to exclude testi testimony,” explanation which in his an in mony jury “perfectly able” because the and, thus, expert). "the with another comprehend the evidence ex- cluded conversation *13 However, poses. estopped indeed, is this objected it, she to evidence— her on arguing rights grounds. from confrontation confrontation appellant because, nothing did although justify were violated Pinedo invocation of physically absent at the time her reasonable notion of estoppel or invited error. Once lodged was read into evi- she her objection, the dence, State, burden shifted to the Appellant declined as the propo- to have Pinedo nent of Pinedo’s brought jury testimony, attached and to court. The judg- reversed, demonstrate that it was ment of the court of admissible not- appeals is withstanding the prohibition constitutional and the case is remanded for consideration of from against witnesses of Appellant’s remaining point of error. accused whom he has been afforded no PRICE, J., concurring filed a opinion. opportunity open confront in court.2 J., COCHRAN, Indeed, filed a concurring one argue State, could that the HERVEY, J., evidence, as opinion, joined. proponent which of the should have WOMACK, J., been concurred. the one to insist that the trial court Pinedo, issue an attachment of thereby
JOHNSON, J., dissented. assuring physical presence her in the PRICE, J., concurring filed a opinion. courtroom so that appellant would agree I with the Court’s conclusion that have the opportunity, should she so choose, Pinedo’s lack of does not render to cross-examine her about purposes “absent” for of the Confron- substance grand jury of her testimony. Clause, join tation opinion the Court’s By reckoning, this it was the State that insofar as it join here, so holds. But I cannot “induced” the error by asking the part opinion Court’s that holds trial court to admit Pinedo’s testimony appellant is estopped from com- without demonstrating first that it would plaining appeal about physical Pinedo’s be only admitted under circumstances that absence from the courtroom so that she would appellant’s obviate the confrontation would be available objection. for cross-examination Though there is a certain tidi- with respect to her testimony. argument ness to this that is I appealing, I write separately explain my disagree- it, ultimately reject following for the rea- ment. son.
Even as the itself estop- Court describes That the burden rests with the State to pel,1 it errs apply concept here. A objected-to establish that out-of-court tes- party may be estopped claiming er- timony can be admitted violating without appeal ror on if what he complaining is principles confrontation does not necessar- about at the appellate actually level is ily require any action affirmative on the something affirmatively he asked the trial part of State to ensure it. It simply Nothing court to do. hap- that sort means that if the record does not somehow pened it, here. Any confrontation error that establish it is the State that should bear might have occurred this case was deficiency, the brunt of that and error product Here, proffer however, the State’s of Pinedo’s should be declared. grand jury testimony into affirmatively evidence. The record does show that an al- appellant did not “induce” proposed admission of ternative was that would have (at 12). Majority opinion (Tex.Crim.App.2008). 644 & n. 2. Vinson v. 252 S.W.3d 340 & n. problem Accordingly, ap- I would hold that the any confrontation
obviated —the essentially waived her Sixth pellant issue a writ offered to of attach- court Clause claim Amendment Confrontation the trial for whatever ment continue hold, purposes appeal. I would brief, time, that it period presumably does, somehow presence to secure take *14 it, that estopped raising or error This alternative would the courtroom. was I might have occurred invited. appellant opportuni- provided have join part opin- cannot of the Court’s least, Pinedo with ty, at to cross-examine ion. jury testimony. That respect grand to her likely to was establish is appellant
all the presently not confirm or that Pinedo could COCHRAN, J., filed a concurring of deny jury testimony because grand her HERVEY, J., joined. opinion in which not con- loss does mean her join I un- majority opinion with the violated, for reasons rights frontation that this case will be remand- derstanding today explains.3 the Court ed for court of address that, court I hold when the trial would appellant’s remaining, unresolved issue of witness, to attach the this satisfied whether carried its offered the State burden to for admitting to show that the testi- establish a foundation proper State’s burden grand-jury testimony Ms. mony violating prior admitted without Pinedo’s could be into evidence after she had left the witness ap- When the Confrontation Clause. ap- stand. estoppel doctrine does not pellant flatly rejected the trial court’s of- ply question fer, proponent knowing to a and intelli- this amounted the burden of evidence bears establish- gent any appellate complaint waiver of ing requirements admit- foundation for jury testimony was grand ting exception evidence as an the hear- of an opportunity admitted in the absence say rule opponent proper once the makes a exposing for That Pi- cross-examination. objection.1 respect nedo’s loss with to her apparently not a jury mode of sufficiently effective cross-exami-
nation defense counsel’s while to be worth
does mean that
cross-examination, which counsel con- forego, not have
sciously opted would
satisfied the Sixth Amendment. State, 571, guarantees Taylor Amendment effective 1. 268 S.W.3d The Sixth v. 578-79 cross-examination, ("Once but not cross-examination (Tex.Crim.App.2008) opponent effective, necessarily as or effective hearsay proper objection, evidence makes the way, prefer. the accused whatever proponent it becomes burden Fensterer, 19, v. 474 U.S. Delaware exception applies that an evidence to establish (1985). enough S.Ct. L.Ed.2d 15 It is that would make the evidence admissible in purposes for Confrontation Clause that the character.”); spite hearsay of its v. Martinez appellant exposed probed have Pi- could (Tex.Crim.App. 178 S.W.3d loss, which, indeed, a cer nedo’s 2005). already tain extent had done in her direct Owens, testimony. United States 484 U.S. 554, 559-60, 951 (1988). 98 L.Ed.2d