Opinion
No. 05-09-00381-CR
Opinion Filed April 27, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-00591-S.
Before Justices RICHTER, FRANCIS, and MYERS.
OPINION
A jury convicted appellant of theft of property in an aggregate value of over $200,000 and assessed punishment at five years' imprisonment and a $10,000 fine. In six issues on appeal, appellant argues the evidence is insufficient to support his conviction and his trial counsel was ineffective. Appellant also asserts the trial court erred in conducting a pre-trial proceeding outside Dallas County in his absence and in sua sponte conducting a deposition of the complaining witness. We conclude the trial court erred in conducting a proceeding outside Dallas County but the error did not cause appellant harm. We further conclude the record does not support an ineffective assistance of counsel claim, and the evidence is sufficient to support the conviction. Therefore, we affirm the trial court's judgment. The Field Trip Outside the County Seat This case was initiated in Dallas County, and was tried in a Dallas County District Court. Prior to trial, the State informed the court that the complainant Ruth Barrett was unavailable to testify due to her mental incapacity. At the time, Barrett was in the care and custody of Senior Source of Dallas, a nursing home, due to a court order granting them guardianship. Appellant's counsel repeatedly complained to the court about not having access to Barrett and pressed for a mental examination of Barrett. One morning, appellant's counsel received a phone call advising him that the judge and attorneys would take a "field trip" to Denton County that day so the judge could determine Barrett's competence to testify at trial. Counsel attempted to contact appellant, but was unable to arrange for his presence in time for the proceeding. Counsel did not object to the location of the proceeding or the fact that it was conducted in appellant's absence. In his first issue, appellant contends the trial court erred in conducting the "field trip" outside the Dallas County seat. The State responds that the trial court did not err because the proceeding was similar to a deposition, or alternatively, that any error was harmless. We must first determine whether appellant's failure to object in the court below results in procedural default. Except for complaints involving systemic or absolute requirements, or rights that are waivable only, all other complaints, whether constitutional, statutory, or otherwise are forfeited by failure to comply with rule 33.1(a). Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004). Examples of rights that are waivable include the rights to assistance of counsel and to a jury trial. Saldano v. State, 70 S.W.3d 873, 878 (Tex. Crim. App. 2002). Examples of absolute systemic requirements include subject matter and personal jurisdiction, a penal statute's being in compliance with the Separation of Powers section of the state constitution, the constitutional requirement that a district court conduct its proceedings in the county seat, the constitutional prohibition against ex post facto laws, and certain constitutional restraints on the comments of a judge. Id. at 888-889. Structural constitutional error also falls into this category. Mendez, 138 S.W.3d at 339-340. The error alleged here — conducting a proceeding outside the county seat — involves an absolute, systemic requirement. Consequently, we may consider appellant's argument for the first time on appeal. There is no question that the proceeding, however characterized, was conducted outside the Dallas County seat. The Texas Constitution requires that a district court "conduct its proceedings at the county seat of the county in which the case is pending, unless otherwise provided by law." Tex. Const. art. V, § 7. This requirement cannot be waived by agreement or consent of the parties. See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). As the court of criminal appeals has observed, if court proceedings could be held any place the judge or parties deemed necessary, the general public would be greatly harmed because it would lose the right to a public trial. See Stine v. State, 908 S.W.2d 429, 431 (Tex. Crim. App. 1995) (plurality op.). "Defendants have the right to a . . . public trial and the constitutional requirement that court proceedings occur in the county seat is a fundamental way to keep our most formal adversarial process open and formal." Id. A public trial prevents the abuse of judicial power, discourages perjury, encourages unidentified potential witnesses to come forward, and instills in the public the perception that the courts are acting fairly. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569-71 (1980). In the instant case, neither party asserts it was permissible to hold the proceeding in Denton County as "otherwise provided by law," and we have identified no authority to support such a conclusion. In the absence of an exception, the constitutional mandate is clear. Proceedings are to be conducted in the county in which the case is pending. See Stine, 908 S.W.2d at 432. Although the judge initially characterized the proceeding as a field trip, at the hearing on the motion for new trial he labeled the event a "deposition." Appellant contends the proceeding more closely resembles a competency hearing, but in his third issue argues if it was a deposition, the trial court erred in conducting it sua sponte. The State responds that the proceeding was more like a deposition and because a deposition may be taken anywhere in the state, the Denton County location is of no consequence. We agree that this highly irregular and impermissible proceeding defies characterization. But we find no basis to conclude the proceeding was a deposition. Depositions of witnesses may be taken by either the State or the defendant for a good reason and upon the trial court's approval. Tex. Code Crim. Proc. Ann. art. 39.02 (West Supp. 2009); see Yaw v. State, 632 S.W.2d 768, 769 (Tex. App.-Fort Worth 1982, pet. ref'd). In certain limited circumstances, such depositions may be used at trial. See Tex. Code Crim. Proc. Ann. arts. 39.12-13 (West Supp. 2009). Appellant correctly notes that the procedures for taking a deposition were not followed. Neither party filed a sworn application requesting a deposition, and there is no authority in the Texas Code of Criminal Procedure for the trial court to conduct a deposition sua sponte. In concluding the proceeding was not a deposition, we note that neither the parties nor the judge treated the proceeding as a deposition at the time it occurred. Moreover, the character of the proceeding differed significantly from a typical deposition. The judge's questioning of Barrett was solely restricted to her orientation as to time, place, and awareness of her personal situation. There were no questions about the elements of the offense, and there was never any indication that Barrett's testimony would be used for evidentiary or impeachment purposes at trial. Because the exclusive focus of the proceeding was to determine Barrett's competence as a witness, the event more closely resembled a competency hearing. See e.g., Watson v. State, 596 S.W.2d 867, 870-71 (Tex. Crim. App. 1980) (stating competency determination involves consideration of whether witness has competence to observe intelligently the events in question at the time of the occurrence, capacity to recollect events, and capacity to narrate them). Therefore, we view the trial judge's subsequent characterization of the proceeding as a deposition as a matter of semantics. It is well-established that a trial judge has discretion to determine the competence of a witness. See Broussard v. State, 910 S.W.2d 952, 960 (Tex. Crim. App. 1995) (stating appellate court reviews competency ruling for abuse of discretion). But there is no discretion to do so outside the county seat. Stine, 908 S.W.2d at 432 (holding it was error to conduct proceeding outside county seat). Because the proceeding was not a deposition, the trial court erred in conducting the proceeding outside the county seat. See Tex. Const. art. V, § 7; Stine, 908 S.W.2d at 432. Harm Analysis Having concluded the trial court erred in conducting the proceeding outside the county, we must now conduct a harm analysis to determine whether the error requires reversal of the judgment. Tex. R. App. P. 44.2. In reaching our conclusion that a harm analysis is required, we are cognizant of the court of criminal appeals' prior holding that the county seat requirement is mandatory and jurisdictional and therefore "no harm analysis need be done." Stine, 908 S.W.2d at 431. But more recent cases suggest harm analysis is required. In Matchett v. State, the court of criminal appeals ruled that cases involving statutes with absolute requirements should be examined with a "case by case determination of whether in fact a meaningful harm analysis is possible." Matchett v. State 941 S.W.2d 922, 928 (Tex. Crim. App. 1996) (plurality op.). The following year, the court of criminal appeals stated that "[e]xcept for certain federal constitutional errors labeled by the United States Supreme Court as 'structural,' no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis." Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) (superceded by statute on other grounds); see also State v. Toney, 979 S.W.2d 642, 645-50 (Tex. Crim. App. 1998) (Keller, J., concurring) (stating Cain overruled Stine by implication); High v. State, 964 S.W.2d 637, 638 (Tex. Crim. App. 1998) (stating Cain overruled "all . . . opinions which conflict with that holding"). The error in the present case is not on the short list of structural errors identified as such by the Supreme Court. See Johnson, 169 S.W.3d at 235. Therefore, a harm analysis is required. Cain, 947 S.W.2d at 264. Because the error is of constitutional magnitude, we apply rule 44.2(a) and reverse unless we determine beyond a reasonable doubt that the error did not contribute to appellant's conviction or punishment. See Tex. R. App. P. 44.2(a); see also Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh'g). Although we are deeply disturbed by and do not condone the trial court's pre-trial activity outside the county, under these unique circumstances and this particular set of facts, we cannot conclude the error caused appellant harm. The informal pre-trial proceeding was conducted with all counsel present, for the limited purpose of determining whether the elderly, infirm complainant was competent to testify at trial. The proceeding was conducted as a matter of record in a non-adversarial fashion; there was no testimony against appellant, and there was no cross-examination. There was no reference to or determination concerning the elements of the charged offense. After this brief interlude, all remaining proceedings were properly conducted in Dallas County. Nothing from the Denton County proceeding was utilized to determine or otherwise impacted the determination of appellant's guilt/innocence or punishment. While we do not discount the fundamental importance of open, public proceedings, we also note that informal hearings involving corollary matters such as competency are frequently conducted in chambers, outside the general public view. See e.g., Kentucky v. Stincer, 482 U.S. 730, 732 (1987) (trial court conducted in-chambers hearing to determine competency of child witnesses). Here, because appellant has not demonstrated that holding the competency hearing outside Dallas County contributed in any way to his conviction or punishment, we cannot conclude appellant suffered harm. Appellant's first and third issues are overruled. Denial of the Right to be Present In his second issue, appellant argues the trial court erred in conducting the Denton County proceeding in his absence. A defendant's constitutional right to be present during certain stages of criminal proceedings is rooted in the Confrontation Clause of the Sixth Amendment and in the Due Process Clause. United States v. Gagnon, 470 U.S. 522, 526 (1985) (per curium). The Sixth Amendment right of confrontation requires that a defendant threatened with loss of liberty be present at all phases of the criminal proceeding against him absent a waiver of that right through his own conduct. Illinois v. Allen, 397 U.S. 337, 338, 343-44 (1970). To implicate the Confrontation Clause, there must be a testimonial out-of-court statement made by a witness absent from trial. See Crawford v. Washington, 541 U.S. 36, 59 n. 9 (2004). Where the defendant is not specifically confronting witnesses or evidence against him, the right to presence is protected by the Due Process Clause. See Gagnon, 470 U.S. at 526. A defendant has a due process right to be present at a proceeding "whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge . . . The presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Id. (citing Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)). Here, no testimonial out-of-court statements resulted from the Denton County proceeding. See Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010). The information was neither used nor intended for any evidentiary or other trial purpose. Thus, our determination turns on whether appellant's absence constituted a violation of his right to be present under the Due Process Clause. In determining whether a fair and just hearing was thwarted by appellant's absence, we emphasize again the nature of the proceeding. To this end, there is nothing in the record to indicate that appellant's presence at the proceeding would have been useful in securing a more reliable determination of whether Barrett was competent to testify at trial. Appellant insists if he had been present Barrett would have reacted to him differently than she reacted to those present, and claims that on his previous visits to Barrett in the nursing home, she hugged him and said "get me out of here." But even if we assume this is true, appellant fails to identify how his presence would have furthered his defense. The relationship between Barrett and appellant had no bearing on whether she was competent to testify, and appellant has presented no evidence that his relationship with Barrett or his knowledge of unique facts would have resulted in a more assured determination of competency. The fact that Barrett may have recognized appellant and greeted him warmly, or might have provided different responses to the questions posed is immaterial to whether she was capable of recollecting and narrating the events in question. In addition, the pre-trial interview actually benefitted appellant because counsel was able to assess Barrett's condition before trial and actually persuaded the judge to allow him to question Barrett. When counsel concluded his questioning, he stated "it's clear that it's unlikely her testimony would be beneficial to the defense if she's in the state of mind that she's in today." The State did not question Barrett, and the entire proceeding was non-adversarial. When the questioning was completed, the trial judge concluded that Barrett was not competent to testify at trial. Significantly, neither party challenged the competency determination. Indeed, when the Denton County proceeding concluded, appellant's counsel stated "obviously I can see the problems and I have better insight now than I did before I questioned [Barrett]." Therefore, on this record, we cannot conclude appellant's absence from this brief proceeding conducted for a limited non-adversarial purpose thwarted a fair and just hearing. See Routier v. State, 112 S.W.3d 554, 557 (Tex. Crim. App. 2003). Appellant's second issue is overruled. Ineffective Assistance of Counsel In his fourth issue, appellant argues his trial counsel was ineffective because he failed to object to the proceeding conducted outside the county seat in appellant's absence. A claim of ineffective assistance of counsel is reviewed under the Strickland test. Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668 (1984)). In determining whether counsel rendered ineffective assistance, an appellate court considers two factors: (1) whether counsel's performance fell below an objective standard of reasonableness and (2) whether, but for counsel's deficient performance, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). It is appellant's burden to show by a preponderance of the evidence that trial counsel's performance was deficient in that it fell below the prevailing professional norms and the deficiency prejudiced the defendant; in other words, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See id. We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Id. During the hearing on the motion for new trial, appellant's counsel testified that he did not object to the hearing outside Dallas County because he did not think the law prohibited it, he did not consider it a hearing, he was too rushed to think about objecting, and he wanted to question Barrett. But we need not decide whether counsel's performance fell below an objective standard of reasonableness because even if it did, appellant has not demonstrated the result would have differed but for the allegedly deficient performance. We have concluded that appellant's absence from the proceeding did not thwart a fair and just hearing. We have also concluded that although the trial court erred and should never have conducted the Denton County proceeding, appellant was not harmed. At the hearing on the motion for new trial, the trial judge stated that appellant's counsel "didn't have a choice" or an opportunity to object to how the proceeding would occur because the judge had decided the Denton County visit would only include the attorneys and the judge. Thus, there is no basis to conclude counsel's objection would have yielded a different result. Appellant's fourth issue is overruled. Sufficiency of the Evidence In his fifth and sixth issues, appellant maintains the evidence is legally and factually insufficient to support his conviction for theft. The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). This standard requires the reviewing court to determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 899 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Id. Therefore, we will conduct a single review of appellant's sufficiency complaints under the Jackson standard. The indictment in the instant case charged appellant with theft by unlawfully appropriating property without Barrett's consent "in that at the time . . . [Barrett] was then and there a person who, by reason of advanced age, was known . . . to have diminished capacity to make informed and rational decisions about the reasonable disposition of said property." See Tex. Penal Code Ann. §§ 31.01(3)(b)(1), 31.01(3) (E) (West Supp. 2009). The crux of appellant's challenge is that there is insufficient evidence to establish he knew, at the time Barrett transferred her property, that Barrett had diminished capacity. We are not persuaded by appellant's argument. Barrett owned two duplexes in Dallas; she lived in one of the units and leased the other three units. Appellant became friends with Barrett in 2001 when he leased one of the duplexes. In 2005, Barrett and appellant entered into a personal services contract that required appellant to take care of everything Barrett needed, in exchange for free rent and reimbursement of expenses. In June 2005, Barrett became a patient of Dr. Mickey Smith. After performing a mental status exam, Dr. Smith determined that Barrett was moderately demented. The next month, appellant accompanied Barrett on her visit to Dr. Smith and Barrett's performance on the mental status exam was the same as on the previous visit. Smith told appellant Barrett was in the first stage of Alzheimer's disease, and Barrett would have good days and bad days. Appellant admitted Barrett was "fading in and out of reality," and that her memory was not good and she was having delusions. By August 2006, Barrett's performance on the mental status exam had declined, and she was on the edge of severe dementia. On October 30, 2006, Smith wrote a letter opining that Barrett could not enter into a contract or handle a bank account. It was Dr. Smith's opinion that during the time he treated Barrett from 2005 to 2006, she had diminished capacity. In 2006, Barrett was also examined by Dr. Paul Chaftez, a clinical psychologist. Barrett performed very poorly on all of the tests Dr. Chaftez administered, and he diagnosed her with dementia and Alzheimer's disease. Chaftez stated that Barrett's ability to recognize her own situation was "quite poor," which could make her vulnerable to exploitation. Dr. Chaftez opined that Barrett's mental deficits would manifest themselves quickly to someone having a conversation with her about financial matters or legal documents. Dr. Chaftez further opined that Barrett had diminished capacity and lacked capacity to competently handle any of her own business affairs. Dr. Chaftez would have expected Barrett to be the same on June 2, 2006 as she was when he examined her on August 29, 2006 because Alzheimer's disease is a "slow moving train." Ida and Douglas Bailey have a real estate business in which they find tenants, collect rent, and maintain property. Barrett became of one the Bailey's clients in 1997. At that time, Barrett was very proud of her duplexes and maintained them in excellent condition. The Baileys were aware that Barrett wanted to leave her estate to "crippled children." Until 2005, Barrett never had a problem taking care of her business. But in 2005, Barrett seemed delusional. She told Mr. Bailey that people were after her, and she had him change the locks on her properties a couple of times. Both of the Baileys believed Barrett had diminished capacity in 2005. Brenda Craig was a teller at the credit union where Barrett conducted her business, and saw Barrett about once a week. Barrett told Craig she owned duplexes and she planned to leave them to Scottish Rite Children's Hospital. The duplexes were the focus of her life because she had no family. In 2005, Barrett put appellant on her account at the credit union, and appellant took over her transactions. When Barrett came to the credit union with appellant, she was confused and quiet. At one point, Barrett removed appellant from her account, and when he came in to withdraw money, the withdrawal was refused. Appellant became angry, and called Barrett and yelled at her. About fifteen minutes later, appellant returned to the credit union with Barrett, and she put him back on her account. Craig believed that Barrett had diminished capacity in 2005. Grace Collander, also a teller at the credit union, testified that Barrett opened an account in 1999 and came in regularly. Collander knew Barrett owned duplexes, and Barrett told her several times that she wanted the duplexes to go to Scottish Rite Hospital. Although Barrett seemed to be functioning normally in 2003 and 2004, by the end of 2005, she was not functioning at a high level. In 2005 and 2006, Barrett would sometimes seem to be fine, while on other occasions she "did not seem clear at all." When appellant accompanied Barrett to the credit union, she seemed "cowed down" and submissive. On January 4, 2006, Barrett came into the credit union and revoked appellant's power of attorney so that she could remove him from her account. Five days later, Barrett returned to the credit union and put appellant back on the account. Collander believed Barrett had mentally declined and was being coerced. Debbie Berquint, a manger of the credit union, also knew Barrett. She noticed a change in Barrett when she started doing things that were out of character, such as being unsure of what she was doing or why she was doing it. In March or April 2005, Barrett's check to the IRS bounced and she asked the credit union for a loan. Barrett subsequently put a stop payment on the loan and stated she had not requested it. Berquint testified that this particular transaction stood out in her mind because Barrett had always taken care of her business. Lawrence Martin met Barrett in 2005 to discuss the potential purchase of her property. The discussion was difficult to follow and it was not clear what Barrett wanted. Barrett ranged from asking tens of thousands to hundreds of thousands for the property, and it was not entirely clear that she would even entertain an offer. By the second conversation, it became clear to Martin that Barrett did not know what she was doing at all. Martin decided he would not enter into a contract with Barrett because she was "crazy," and not in a position to handle or understand the sale of her property. Dallas police officer Bruce D'Ostroph testified about an incident involving Barrett in June 2006. When the officer was dispatched to Barrett's duplex, she was standing in the alley cursing. After she calmed down, she complained about water running down the alley. Officer D'Ostroph described Barrett's mental state as "kind of strange" and he was concerned that he was not dealing with a completely sane person. He routed a copy of his report to adult services because he though there might be a mental health issue. Another Dallas police officer, Amie Brewer, visited Barrett five or six times in 2006 to check on her. On one occasion, Barrett talked about a man sitting on top of a light pole, stalking her. The history of service calls for Barrett's address showed fifty to fifty-five calls, most of which were about burglaries, which was not normal in that area. Brewer believed that Barrett had diminished capacity and was vulnerable, so she contacted Social Services. Barrett's mail carrier also testified that after knowing Barrett for a number of years, he believed she had diminished capacity. Fred Thomas, an estate and financial planner, first met with Barrett in July 2005. Barrett included appellant in the meeting, and told Thomas it was fine for appellant to hear the details of her financial affairs. Thomas liked appellant, but he was suspicious of why a relatively young man would want to be Barrett's caregiver. During the meeting, Thomas explained to Barrett that because of her income, she would need to pay for her own long-term care, so she needed to keep her property. Thomas encouraged Barrett to set up a trust, so that she would have the property in her lifetime. Barrett told Thomas she wanted her estate to go to disadvantaged children. Thomas last saw Barrett in January or February 2006, and was surprised to learn that five or six months later, she had given her property to appellant. The county property records reflect that Barrett's property, valued at $292,940, was transferred to appellant in June 2006. The consideration for the deed is ten dollars. Jean Akers testified that she knew Barrett through her aunt, and Barrett was pretty sharp about her business. Akers began to notice a mental change in Barrett when Barrett began seeing things and forgetting things. These changes got progressively worse, and Barrett was "consistently mentally bad" in the last year or two before she went into a nursing home. In June 2006, Akers received a call from Barrett asking Akers to help her. Barrett told Akers she suspected appellant had taken her somewhere to sign legal papers to get her property, and appellant was on her account at the credit union. On June 28, 2006, Akers took Barrett to the credit union where she removed appellant as a joint owner of her accounts. Akers also suggested that Barrett speak to an attorney to remove appellant's power of attorney. Akers spoke to appellant once when he called her about taking Barrett to an attorney so she could change her will. Akers refused to discuss it, and appellant became angry. Akers believed that in 2005 and 2006, Barrett had diminished capacity. Valerie Hooper, a social worker with the City of Dallas Crisis Intervention Center, received a referral from Officer Brewer to visit Barrett in August 2006. Hooper met with Barrett, who was not oriented as to person, place, or time. Barrett could not tell Hooper what her financial resources were, so Hooper took her to the credit union. When the bank officers shared their concerns about Barrett, Hooper made a referral to Adult Protective Services. On August 28, 2005, the probate court appointed Charles Hunt as the guardian ad litem for Barrett. When Hunt visited Barrett, she was disoriented as to person, time, and place, and believed she was at a company picnic. Hunt asked Barrett if she had given appellant her property and she stated "I've never given him any property, and if he says I did, he's a lying SOB." After speaking with Barrett, Hunt believed she had diminished capacity and filed an application for the appointment of a permanent guardian. Susan Thornberg, a probate court investigator, met with Barrett on August 30, 2006. Barrett had no idea where she was and thought she was at a company picnic. When Thornberg asked Barrett if she had given her property to appellant, Barrett replied, "Hell no." Thornberg believed Barrett had diminished capacity. Because she was concerned about criminal activity, she referred Barrett's case to the District Attorney. Senior Source of Dallas was appointed as Barrett's permanent guardian in August 2006. In the order appointing permanent guardian, Barrett is described as being totally incapacitated with cognitive defects and fluctuating levels of disorientation and episodic confusion, and unable to manage her own affairs. An attorney who drafted a will for Barrett testified that Barrett was of sound mind when she executed the will, and the individual who handled the closing on Barrett's property testified that on the day of the transfer, Barrett seemed fine and was not disoriented. Appellant also testified, and presented other witnesses who testified that Barrett did not appear to have diminished capacity or an impaired memory in 2005 and 2006. Appellant maintains this evidence shows that Barrett suffered diminished capacity on some occasions, and on others she was capable of making informed and rational decisions about her property. According to appellant, when it came to her real estate, Barrett was "very rational" and on the day of the property transfer, she was fine. In fact, appellant testified that Barrett had enhanced capacity with regard to her real estate. The trier of fact, however, was entitled to resolve any inconsistences in the evidence against appellant. On this record, viewing the evidence under the appropriate standard, we conclude the evidence is sufficient to support appellant's conviction. Appellant fifth and sixth issues are overruled. Having resolved all of appellant's issues against him, we affirm the trial court's judgment.
There is some confusion in the record as to the exact location of the hearing. The reporter's record indicates the proceeding was conducted in Denton County, while references by both attorney's within the record refer to Lewisville. Regardless of the precise location, neither party disputes that the location was outside Dallas County. For ease of reference, we refer to the proceeding as having been conducted in Denton County.
Structural errors are federal constitutional errors so labeled by the Supreme Court. See Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) (superceded by statute on other grounds). The very limited class of structural constitutional errors includes the total deprivation of counsel at trial, lack of an impartial trial judge, unlawful exclusion of members of defendant's race from a grand jury, denial of the right to self-representation at trial, the denial of a right to a public trial, and an instruction that erroneously lowers the burden of proof. See Johnson v. State, 169 S.W.3d 223, 235 (Tex. Crim. App. 2005) (citing Johnson v. U.S., 520 U.S. 461, 468-69 (1997)).
Appellant does not argue that his right to a public trial was violated.
Persons who, in the opinion of the trial court, "are in an insane condition of mind at the time when they are offered as a witness, or who . . . were in that condition when the events happened of which they are called to testify" are incompetent to testify. Tex. R. Evid. 601(a)(1).
The Langham court observed that while the outer limits of what constitutes an out-of-court statement have yet to be defined, the Supreme Court has identified three kinds of out-of-court statements that are considered testimonial. Id. These statements include: ex parte in-court testimony or its functional equivalent (such as affidavits, custodial examinations, prior testimony that the accused was unable to cross-examine, or similar pre-trial statements that might be used prosecutorially); extra-judicial statements contained in formalized testimonial materials, such as affidavits, depositions, or prior testimony; and statements made under circumstances which would lead an objective witness to reasonably believe the statement would be available for a later trial. Id.