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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. PD-255-04

RAMON REYNA, Appellant


v.


THE STATE OF TEXAS


ON THE STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE ELEVENTH COURT OF APPEALS

COLLIN COUNTY

Holcomb, J., filed a dissenting opinion, in which Johnson, j., joins. Womack, J., joins as to part I.

D I S S E N T I N G O P I N I O N



Today, the Court engrafts yet another new requirement-"party responsibility"-onto our preservation of error rules, see Tex. R. App. P. 33.1; Tex. R. Evid. 103, and in so doing again denies a criminal defendant an enumerated constitutional right, see e.g., Keeter v. State, (1) in this case, the right to confrontation. Because this novel theory is not applicable to the facts at hand, I respectfully dissent.

Discussion

I.

I would hold that the offer of proof here and trial counsel's reasons for requesting the right to question the witness about a subsequent accusation and recantation, preserved error of a confrontation complaint because it was made with "sufficient specificity to make the trial court aware of [a confrontation] complaint," and, the complaint was "apparent from the context of the objection." See Tex. R. App. P. 33.1. The language of Rule 33.1 does not support the majority's "party responsibility notion." Supra at _____. Specifically, Rule 33.1 provides that error is preserved if "the specific grounds [not ground] are apparent from the context." This language, of course, implies that more than one ground may be preserved by a general request for the admission of evidence [or objection to evidence] if the grounds supporting admission are apparent from the context. The Court's holding today lops off half of the rule; that is, if there could be more than one ground for admission raised by a general argument for admission of evidence, the proponent of the evidence loses automatically, unless of course he splits hairs, something we have said a party is not required to do to. See Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). (2) Nevertheless, as explained in the following discussion, I believe the record supports the fact that appellant preserved just one complaint--a confrontation clause complaint; and therefore, the majority's application of its "less common notion" is in error.

The majority reasons that the less common notion of "party responsibility" prevents admission here because at least two grounds for admission of the evidence were articulated by defense counsel, the proponent of the evidence. However, a careful reading of defense counsel's arguments belies the majority's reasoning. Defense counsel made two arguments that the evidence should not be excluded under the rules of evidence. First, he argued that the evidence was not subject to exclusion under the hearsay rules because it was not hearsay--it was not being admitted for the truth of the matter asserted therein. Second, and also in an apparent effort to counter an anticipated argument--i.e., that the court should exclude the evidence based on Rule of Evidence 412(b), defense counsel argued that he was not offering the evidence "to go to her sexuality." Both of these arguments were responses to anticipated arguments for exclusion of the evidence that the State never made. (3) On the other hand, defense counsel's third argument that the evidence should be admitted centered on his right to test the credibility of the witness before the jury, which is clearly a reference to the Confrontation Clause.

Speaking for defense counsel, however, the majority reasons that his "reference to credibility could be a reference to either the Rules of Evidence or the Confrontation Clause"; and because this fatal error so confused the trial judge, we now may summarily deny appellant his right to review based on the Confrontation Clause. Supra at _____. See Tex. Code Crim. Proc. Ann. § 44.02.

Although the majority demands specificity from defense counsel, it is not willing to name the rule (or rules) of evidence it attributes to appellant. Should a reviewing court demand that parties make their objections so specific that no more than one ground for relief could be intertwined within another possible ground for relief, (4) the other unnamed ground for relief should be specifically articulated. But because the majority does not do this, I will review every rule of evidence that uses the word "credibility" (as it relates to witnesses before the jury) to determine whether such an evidentiary argument can be reasonably attributed to appellant.

Rule 607, which is entitled "Who May Impeach" provides that, "The credibility of a witness may be attacked by any party, including the party calling the witness." The majority cannot reasonably conclude that defense counsel was invoking this rule because he was not being denied the right to attack the witness's credibility. Rather, defense counsel thoroughly cross-examined the witness after the in camera request to question her about a similar accusation she made against another man. Additionally, Rule 607 is clearly inapplicable because it was promulgated to replace the former "voucher rule," which prohibited a party from cross-examining a turncoat witness it called. See Russeau v. State, 785 S.W.2d 387, 390 (Tex. Crim. App. 1990). This rule just does not fit here.

Rule 609(a)--entitled Impeachment by Evidence of Conviction of Crime--mentions the word "credibility," but it is also inapplicable here. Rule 610 prevents parties from offering evidence of a witness's religious convictions to show credibility or lack of credibility. This rule could not be reasonably attributed to appellant's credibility argument. Rule 608(a)(1)(2) provides the general guidelines to attack the credibility of a witness; thus, it would not directly support admission of the evidence here.

Because defense counsel was prevented from asking the complaining witness about a specific instance of past conduct--that she accused another man of molesting her and then later recanted, it would seem to draw Rule 608(b) into play. But this would be an odd interpretation of defense counsel's argument for admission of the evidence, as Rule 608(b) is a rule of exclusion. Moreover, we have already ruled, albeit pre-Crawford, that there is no Confrontation Clause exception to the rule preventing cross-examination of witnesses upon specific instances of conduct. See Lopez v. State, 18 S.W.3d 220, 223 (Tex. Crim. App. 2000). (5)

Therefore, defense counsel's argument can only be interpreted as an effort to invoke the protections of the Confrontation Clause, as the trial court was limiting appellant's right to cross-examine the complaining witness about her similar accusation and later recantation. That is, it just makes no sense to attribute to defense counsel an evidentiary argument, as it appears no evidentiary argument would be helpful in admitting the accusation/recantation evidence.

Conversely, defense counsel's argument that the evidence goes to the complaining witness's credibility is most rationally centered on the Confrontation Clause. In Davis v. Alaska, the Supreme Court reversed a conviction, without a finding of harm, based on the Confrontation Clause, where the trial court refused to permit cross-examination of a material witness as to motive and bias. 415 U.S. 308, 315 (1974); accord United States v. Cronic, 466 U.S. 648, 656-57 (1984); cf. Carmona v. State, 698 S.W.2d 100, 103-04 (Tex. Crim. App. 1985). We have construed this requirement to mean that a defendant may not be deprived of effective cross-examination. See Carmona, 698 S.W.2d at 104. Defense counsel's request to cross-examine the witness so as to reflect her "credibility" and the trial court's refusal to permit it, presents a classic Sixth Amendment deprivation argument; i.e., without the ability to cross-examine the witness upon her similar accusation and recantation, appellant would be deprived of his right to confrontation. See id.

And, the Supreme Court's reasoning in Crawford v. Washington also supports the contention that defense counsel's intent here was to invoke the protections of the Confrontation Clause and nothing else. In Crawford, the Court explained that the text of the Sixth Amendment "is most naturally read as a reference to the right of confrontation at common law," which traditionally demanded "live testimony in court subject to adversarial testing." 541 U.S. 36, 43, 54 (2004) (emphasis added). Any exceptions to the right of confrontation are only those recognized at common law. See id. at 54. (6) While Crawford's holding addressed the admission of an out-of-court statement and the defendant's inability to cross-examine the out-of-court declarant, (7) the primary focus of the opinion is directed at the common law guarantee to cross-examine the witnesses against the accused in order to "tease out the truth" before the trier of fact. See id. at 67. Indeed, the lion's share of the majority opinion is devoted to the proposition that the confrontation right requires adversarial testing of the witness before the trier of fact so that the trier of fact can determine the witness' credibility. See id. at 43-46 (development of confrontation right at common law as it related to cross-examination of the witness before the trier of fact to determine credibility). Thus, the primary goal of the confrontation right, as Chief Justice Rehnquist points out in concurrence, is to allow the jury to determine the witness' credibility:

[C]ross-examination is a tool used to flesh out the truth, not an empty procedure. See Kentucky v. Stincer, 482 U.S. 730, 737 (1987) ("The right to cross-examination, protected by the Confrontation Clause, thus is essentially a 'functional' right designed to promote reliability in the truth-finding functions of a criminal trial"); see also Maryland v. Craig, 497 U.S. 836, 845 (1990) ("The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact").


See 541 U.S. at 74 (Rehnquist, J., concurring).

Thus, as our binding authority suggests, (8) we should be hesitant to conclude that, pursuant to a procedural rule (or a new interpretation of that rule), a defendant's request to test the credibility of the witness through cross-examination is too vague to put the trial court on notice that the defendant is invoking the protections of the Confrontation Clause. See Douglas v. Alabama, 380 U.S. 415, 422 ("an objection which is ample and timely to bring the alleged federal error to the attention of the trial court and enable it to take appropriate corrective action is sufficient to serve legitimate state interests, and therefore sufficient to preserve the claim for review").

While defense counsel's reason for admitting the evidence was not a model of clarity, I would hold that it put the trial court on notice that appellant's right to confrontation would be violated if he was not allowed to test the witness' credibility through extended cross-examination. See id.; Tex. R. App. P. 33.1. The most reasonable interpretation of defense counsel's "credibility" argument is that, in this indecency with a child case, appellant was complaining about the limitations being placed on his right to cross-examine the witness, which is clearly a Confrontation Clause complaint. See Brooks v. State, 132 S.W.3d 702, 705 (Tex. App.--Dallas 2004, pet ref'd). (9)

II.

It is true that defense counsel could have said, "Excluding the evidence would infringe on Mr. Reyna's right to confront the witnesses against him under our state and federal constitutions." But, under the majority's reasoning set forth in Keeter, this would be a plain-vanilla argument insufficient to draw the trial court's attention to constitutional error because there would be no mention of case authority, such as Crawford v. Washington, Davis v. Alaska, or Long v. State. See Keeter v. State, 2005 Tex. Crim. App. LEXIS 521 * 12.

I must add that I am dismayed by this Court's willingness to overturn decisions of the lower appellate courts based on newly created theories, such as the majority's admittedly "less common notion" of party responsibility here. Put simply, the court of appeals did not err; it based its decision on controlling case law from this Court and a proper application of the rules.

Furthermore, I do not understand why this Court repeatedly construes the procedural default concepts of Tex. R. App. P. 33.1 to "protect" trial courts, as if trial judges are laymen rather than experts in law and procedure. The state and federal constitutions do not protect trial courts--rather, they protect the criminally accused. U.S. Const. amend VI; Tex. Const. art. I, § 10.

With today's holding, we are not heading down a slippery slope; we have hit rock bottom. The majority decision today holds litigants to such a high standard that even the most careful, alert, knowledgeable, and brilliant lawyer can be tripped up, and the constitutional rights belonging to his client will be unavailable due to a judicially crafted enlargement of a reasonable and fair rule of court. (10) We should not allow our new "less common notions" of hair-spitting analyses gut the constitutional rights of citizens accused. For these reasons, I dissent. (11)

FILED: JUNE 29, 2005

PUBLISH.

1. PD-1012-03, 2005 Tex. Crim. App. LEXIS 521 *9-14 (Tex. Crim. App. 2005) (holding appellant did not preserve
Brady claim where factual issue of disclosure by prosecutor of impeachment evidence was litigated in motion for new trial).

2. We have held that "No technical considerations or form of words" are required to preserve error for review.
Id. (straightforward communication in plain English will always suffice if it lets the trial judge know what the party wants and why he thinks himself entitled to it).

3. Trial counsel's lack of clarity may be attributed in part to the State's failure to specifically object to appellant's offer of proof.
See supra at ____ (Court: "State objects?"; Prosecutor: "Yes"); see also Tex. R. Evid. 103(2),(b).

4.
See also, Keeter, 2005 Tex. Crim. App. LEXIS 521 *11-12 (intertwined legal arguments during motion for new trial death knell to complaint on appeal).

5. Both the State and the majority agree that Rule 412(b) is not applicable here, so I will not address it.

6. The Federal Confrontation Clause provides that,"[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."
See also, Lopez v. State, 18 S.W.3d at 222 (a primary interest secured by the Confrontation Clause is the right of cross-examination); Long v. State, 742 S.W.2d 302 (Tex. Crim. App. 1987) (outlining state confrontation right), cert. denied, 485 U.S. 993 (1988), overruled by Briggs v. State, 789 S.W.2d 918 (Tex. Crim. App. 1990)).

7. See Delaware v. Fensterer, 474 U.S. 15, 18 (1985) (confrontation right is invoked by two broad circumstances: the admission of out-of-court statements and restrictions imposed by law or by the trial court on the scope of cross-examination).

8.
Pointer v. Texas, 380 U.S. 400, 406 (1965); see also, Davis v. Alaska, 415 U.S. at 318 (confrontation right abridged where the trial court did not permit defense counsel to "expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.") (emphasis added).

9. Citing
Douglas v. Alabama, 380 U.S. at 421-23, the Dallas Court of Appeals concluded that a hearsay objection which also invoked a right to cross-examination, preserved constitutional error under the Sixth Amendment.

10.
See Tex. R. App. P. 33.1.

11. I agree with the majority opinion concerning the trial court's improper sealing of the record. However, because I would conclude that appellant adequately preserved his confrontation clause claim, I would hold the error harmless.

"Evidence willfully withheld from disclosure under a discovery order should be excluded from evidence."?? Texas Justice System spelled "JUST US."

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. PD-0669-05

CALIN MUGUR OPREAN, Appellant


v.


THE STATE OF TEXAS


ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

HARRIS COUNTY

Keasler, J., delivered the opinion of the Court in which Meyers, Price, Womack, Johnson, Hervey, and Holcomb, JJ., joined. Cochran, J., filed a concurring opinion in which Keller, PJ., joined.

O P I N I O N


The trial judge signed a pre-trial order, requiring that at least ten days before trial, the prosecutor give Oprean's counsel all videos containing Oprean's voice. Immediately before the trial's punishment phase, Oprean's attorney learned that the prosecutor had such a video. The prosecutor, over Oprean's objection, introduced it into evidence. We must decide whether, under the particular facts of this case, the judge erred in admitting the tape. We hold that he did.

FACTS

On February 25, 2004, Judge Don Stricklin signed a document entitled "Discovery Order," directing the State "to furnish the items ordered for inspection and copying on or before ten (10) days prior to trial." Those items included, among other things, "[a]ll video and tape recordings that contain the defendant's voice." It is undisputed that no such items were produced before trial.

Oprean's felony DWI jury trial began on April 12, 2004. After hearing evidence and deliberating, the jury found Oprean guilty on April 14 and was recessed for the day.

That evening, Oprean's attorney asked the trial prosecutor what evidence she intended to present on the punishment issue the next morning. She replied that she intended to present only the "judgments and sentences" in Oprean's prior convictions.

Just minutes before the punishment phase began, defense counsel learned that the prosecutor was going to offer a videotape depicting one of Oprean's previous offenses into evidence. The prosecutor informed defense counsel of her intent to offer the video only after defense counsel inquired about the presence of a police officer in the courtroom, who he assumed was present for another case. The prosecutor informed the trial judge and defense counsel that the officer was there to "testify that the video is a fair and accurate depiction."

Outside the presence of the jury, defense counsel objected to the admission of the video, pointing out to the judge that the prosecutor had violated the discovery order by failing to allow the defense ten days to inspect the video and relating the conversation he had with the prosecutor the previous evening. The prosecutor replied that "there was no [Article 37.07 (g)] charge in this Court's discovery order and no [37.07] request was ever made by defense counsel, which is required to be made to me to give him this evidence." The trial judge overruled defense counsel's objection to the tape's admission.

Defense counsel then asked the judge to grant a recess so that he could inspect the video and prepare his strategy, but the judge summarily denied his request. The tape was introduced before the jury, and the jury assessed Oprean's punishment at five years' imprisonment and a $5,000 fine.

Oprean appealed, and the First Court of Appeals affirmed his conviction. (1) The court of appeals determined that it could not "conclude that the State's article 37.07, section 3(g) explanation is meritless on it face." (2) As a result, the court stated: "the record does not demonstrate that the State acted with specific intent to willfully disobey the discovery order. We hold that the trial judge did not abuse its discretion in admitting the videotape." (3) We granted Oprean's petition for discretionary review to decide whether the Court of Appeals erred in upholding the trial judge's decision to admit the video over Oprean's objection. (4)

LAW AND ANALYSIS

"Evidence willfully withheld from disclosure under a discovery order should be excluded from evidence." (5) When reviewing a trial judge's decision to admit or exclude evidence, an appellate court must determine whether the judge's decision was an abuse of discretion. (6) Unless the trial judge's decision was outside the "zone of reasonable disagreement," an appellate court should uphold the ruling. (7) When a trial judge makes findings of fact "based on an evaluation of credibility and demeanor," an "appellate court should show almost total deference" to those findings. (8) And when the trial judge fails to enter written or oral findings of fact, an appellate court will "view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record." (9)

In LaRue v. State, our most recent case addressing whether the State's violation of a discovery order was willful, LaRue sought to prevent the State from introducing its DNA evidence because the State failed to comply with the discovery order by disclosing the evidence in an untimely manner. (10) The trial judge agreed with LaRue, and ruled that the DNA evidence should be excluded. (11) The court of appeals reversed the trial judge's decision, and we affirmed. (12) In doing so, we reviewed three situations cited by the trial judge as evidence of willful conduct by the State. (13)

In the first situation, the prosecutor failed to comply with the discovery order because he was told that LaRue's case was going to be reassigned to another prosecutor. (14) The trial judge found that the prosecutor's failure to turn over the DNA evidence "constituted a 'willful choice.'" (15) We concluded that although the inaction of the prosecutor was "'willful' . . . with respect to the conduct itself, " there was "no evidence in the record that, by his choice, he intended to violate the order or harm the defense." (16)

In the second situation, defense counsel spoke with the prosecutor about discovery, telling him that he needed the evidence immediately and that he would be going out of town. (17) The prosecutor faxed the discovery materials to defense counsel the day he left town. (18) The trial judge found the prosecutor's conduct to be "'gamesmanship at the expense of defendant's constitutional right to a fair trial.'" (19) We disagreed, concluding that it is unreasonable to infer that the timing of the fax "was a strategic and purposeful effort to thwart the defense in its preparation of its case." (20)

In the final circumstance, the prosecutor objected to the trial judge's proposal to grant a continuance. (21) According to the trial judge, the State's decision to "exclude any lesser remedy demonstrates the willfulness of the conduct in withholding the evidence . . . ." (22) Disagreeing with the trial judge's findings, we stated that the prosecutor's objection "was in no way relevant to the nature of the State's conduct when it violated the discovery order." (23) Based on the foregoing, we held that "there is no evidence that the prosecutor in this case acted with the specific purpose of disobeying the court's discovery order. . . ." (24)

In this case we must determine whether the prosecutor acted with the specific intent to willfully disobey the discovery order by failing to turn over the videotape from Oprean's prior 2002 DWI conviction to the defense. We conclude that she did.

It should be noted at the outset that a visiting judge handled the punishment phase and the hearing immediately preceding it, so he may not have been aware of the pretrial order at issue before Oprean's lawyer called it to his attention. Nevertheless, the order was part of the record before him. And the order unambiguously directed the State to disclose ten days before trial the very item introduced into evidence. The plain wording of the order is clear to anyone who can read.

Two things are particularly unacceptable about the prosecutor's conduct. First, the prosecutor told defense counsel the night before the punishment phase began that she intended to introduce only the judgments and sentences from the previous convictions. She did not dispute the fact that she made that statement. There is no suggestion that later that night or early the next morning she suddenly discovered the videotape's existence. And because her signature appears at the end of the discovery order, it cannot be said that she was unaware of it.

Second, when defense counsel argued that he had not received notice as required by the discovery order, the prosecutor responded by stating that "there was no [37.07] charge in [the] Court's discovery order." When affirming the judgment of the trial court, the Court of Appeals relied on the prosecutor's explanation. (25) The court found the explanation was not "meritless on its face" and concluded that "[i]n light of the State's explanation, and regardless of an ultimate determination of its validity, the record does not demonstrate that the State acted with specific intent to willfully disobey the discovery order." (26) But the validity of the explanation offered by the prosecutor is a relevant factor that should be considered when determining willfulness. The discovery order did not mention anything about Article 37.07, and therefore was not limited by that provision. Because the prosecutor knew about the discovery order and chose to invoke Article 37.07 after counsel called her attention to the order, she made a conscious decision to violate the plain directive of the discovery order.

Affording total deference to the trial judge's implicit findings of fact that are supported by the record, we find that the trial judge abused his discretion in admitting the videotape over defense counsel's objection. The record reveals that, unlike the prosecutor in LaRue, the prosecutor's conduct here was a calculated effort to frustrate the defense. Because intent is inferred from acts done and words spoken, we have considered the prosecutor's statements and actions in finding her conduct to be willful.CONCLUSION

The judgment of the Court of Appeals is reversed, and the case is remanded to that court to determine what harm, if any, was caused by the videotape's admission into evidence during the punishment phase of Oprean's trial.

DATE DELIVERED: September 13, 2006

PUBLISH

1. Oprean v. State, No. 01-00461-CR (Tex. App.- Houston [1st Dist.] 2005) (not designated for publication).

2.
Id. at 10.

3.
Id. at 10-11.

4.
In re Oprean, No. PD-0669-05 (Tex. Crim. App. July 27, 2005).

5.
Hollowell v. State, 571 S.W.2d 179, 180 (Tex. Crim. App. 1978).

6.
Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993).

7.
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).

8.
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

9.
State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

10. 152 S.W.3d 95, 96 (Tex. Crim. App. 2004).

11.
Id.

12.
Id. at 96-97.

13.
Id. at 97.

14.
Id.

15.
Id.

16.
Id.

17.
Id. at 97-98.

18.
Id. at 98.

19.
Id.

20.
Id.

21.
Id. at 98-99.

22.
Id. at 99.

23.
Id.

24.
Id.

25.
Oprean, 01-00461-CR at 10.

26.
Id.