Opinion
02-22-00081-CR
03-16-2023
Andreus Giovan Barkley, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 30th District Court Wichita County, Texas Trial Court No. DC30-CR2021-0739
Before Sudderth, C.J.; Kerr and Womack, JJ.
MEMORANDUM OPINION
DANA WOMACK JUSTICE.
I. Introduction
Appellant Andreus Giovan Barkley was indicted for assault family violence, enhanced to a third-degree felony because of a prior conviction for that same type of offense, for assaulting his girlfriend, Ashati Peters. See Tex. Penal Code Ann. § 22.01(b). Although Peters initially desired for charges to be brought against Barkley-and had conversations with police officers and Barkley's parole officer regarding the assault-she later changed her mind, invoking her Fifth Amendment right against self-incrimination at Barkley's trial. See U.S. Const. amend. V. The trial court found that Peters was unavailable to testify because of her invocation of her Fifth Amendment right and that her unavailability had been procured by Barkley's wrongdoing. Pursuant to the doctrine of "forfeiture by wrongdoing," the trial court admitted Peters's out-of-court statements regarding the assault over Barkley's Confrontation Clause and hearsay objections. See Tex. Code Crim. Proc. Ann. art. 38.49 (codifying the forfeiture by wrongdoing doctrine). A jury later convicted Barkley of third-degree assault family violence and assessed his punishment at twenty-five years' confinement. The trial court sentenced him accordingly.
Barkley's punishment was enhanced by two prior felony convictions. See Tex. Penal Code Ann. § 12.42(d).
In his sole point on appeal, Barkley argues that the trial court abused its discretion by admitting Peters's out-of-court statements regarding the assault because, according to Barkley, the doctrine of forfeiture by wrongdoing does not apply to Peters's invocation of her Fifth Amendment right. Because we will hold that the trial court did not abuse its discretion by concluding that the State showed by a preponderance of the evidence that Barkley wrongfully procured Peters's unavailability at trial-and, thus, did not abuse its discretion by admitting Peters's out-of-court statements regarding the assault over Barkley's Confrontation Clause and hearsay objections-we will affirm.
II. Background
A. The April 27, 2021 Assault and Peters's Conversations with Police Officers and Barkley's Parole Officer Regarding the Assault
On April 27, 2021, Wichita Falls police officer Mario Avitia responded to a domestic-violence call involving Barkley and Peters. When Officer Avitia arrived at the scene of the assault, an upset Peters explained that she had just been assaulted by Barkley. Peters, who was pregnant with Barkley's child at the time, told Officer Avitia that she and Barkley had been arguing, that she had yelled at Barkley and he had slapped her, that she had "said something smart to him" and he had punched her, and that she had tried to get away but that he had "put his hands around her neck."
On the day of the assault, Peters went to the Wichita Falls District Parole Office and made a report with Julie Baker-Barkley's parole officer-regarding the assault. Baker noticed "swelling on [Peters's] eye," and Peters recounted that Barkley had "slapped [her], punched [her] in the face, and choked [her]" that morning. Baker asked Peters to make an affidavit regarding the assault, and Peters made an affidavit, reflecting that she had been "slapped," "choked," and "punched" by Barkley during an argument.
On May 19, 2021-a little over three weeks after the assault-Peters spoke with Matthew Bailey, a detective in the Wichita Falls Police Department, regarding the assault. Peters told Detective Bailey that "she was done" with the assault incident involving Barkley, that she had "washed her hands" of the situation, that "she didn't want to have any other involvement" with it, and that "she didn't want to prosecute anymore."
B. Peters Signs an Affidavit of Non-Prosecution, and Barkley is Indicted
On May 25, 2021-approximately one month after the assault-Peters signed an affidavit of non-prosecution indicating that she did not want to pursue charges against Barkley and that she wanted the State to dismiss the charges brought against him. In that affidavit, Peters stated that she had signed the affidavit voluntarily and that she had not been "coerced or threatened in any way to sign [the] affidavit, nor ha[d] any promise of any nature been made in exchange for [her] execution of [the] affidavit."
On July 8, 2021, Barkley was indicted for the offense of assault family violence, enhanced to a third-degree felony because he had previously been convicted of that type of assault. Four days later, Peters wrote a letter-ostensibly to prosecutors-in which she stated that she did "not wish to go any further with any action" against Barkley, noting that "[h]e is a great man and father to his kids, [and] he just made a huge mistake to be where he's at today."
C. Peters Fails to Appear at Barkley's February 2022 Trial Setting, and the Trial Court Grants the State's Motion for Continuance
The State's case against Barkley proceeded to trial in February 2022. On February 7, the parties conducted voir dire and selected a jury, and the next day, the parties presented opening statements. During the State's opening statement, it told the jury that Peters did not want to testify and that a subpoena had been issued to compel her testimony.
Following opening statements, the State presented to the trial court an application for writ of attachment for Peters-who had yet to appear at trial. The State explained that Peters had been served with a subpoena on the evening of February 7 and that she had failed to show up at trial at the required 9:00 a.m. start time on February 8. The State told the trial court that it had sent investigators to Peters's residence after she had failed to appear and that one of Peters's neighbors had told them that Peters had no intention of attending the trial. The trial court appointed counsel to represent Peters for the purpose of the hearing on the State's application for writ of attachment.
During that hearing-which took place later that morning of February 8- Peters arrived at the courthouse and was brought into the courtroom. The trial court swore her in as a witness in the case, ordered her to be back in the courtroom at 1:00 p.m., and informed her that a writ of attachment would be issued for her if she failed to appear. Peters stated that she understood that she could be subject to jail time and a fine if she did not appear, and she told the trial court that she would be in the courtroom at the designated 1:00 p.m. start time. The trial court instructed Peters to meet with her appointed counsel so that he could "advise [her] as to the law and circumstances surrounding this hearing and other issues that may be coming up during this trial." Peters then met with her appointed counsel, a prosecutor, and one of the State's investigators in the jury room. Ultimately, Peters did not appear in the courtroom at 1:00 p.m. The trial court issued a writ of attachment to secure her attendance and ordered the parties to reconvene the next morning.
When the trial reconvened, Peters still had not appeared. The State made an oral motion for continuance, requesting that the trial court continue Barkley's trial until the writ of attachment was executed on Peters. In considering the State's motion, the trial court admitted an exhibit showing text messages that had been exchanged between Barkley and Peters on February 6 and February 7. During one exchange on February 7, Peters wrote, "they called me to tell me they supena me but I'm not goin hell I done aske multiple ppl if I don't go what would happen n if I don't that makes the case harder for them n I'll probably just get a ticket I'm not turning on u at all." Barkley responded, "it feels good to know u got my bacc." Peters replied, "Yes I'm here for u.... u don't have to worry on my end I'm not showing up answering or none of that no more I'll just wait for my warrant ticket or whatever they gone give me."
Later that day, the State filed a written motion for continuance.
The trial court also admitted a jail-call recording between Barkley and Peters.During that call, Barkley told Peters to "sign those d[***] papers," and when asked by Peters what papers he was referring to, Barkley said, the "non-prosecution papers." Barkley said, "I just need you to do that for me, please.... They trying to f[***] me off." Peters responded, "I bet they is, just like you did me." Barkley told her, "Please, can you just call like . . . the D.A. office tomorrow or whatever and [unintelligible] non-prosecution papers and sign them, please." Later during the call, Barkley told Peters, "I'll pay you whatever, whatever, like, for real." Peters said, "I understand . . . you're probably going be gone for a while.... I told you keep your hands to yourself. I told you that." She later stated, "I'm to the point [where] I don't even want you calling me. Like what you calling me for?" Barkley told Peters, "Just go do that for me." Peters told Barkley, "I don't feel like I should go do what you want me to do."
Although the record does not reflect the date the call was made, it appears from the context of the call that it took place sometime between the April 27, 2021 assault and Peters's May 25, 2021 signing of her affidavit of non-prosecution.
After considering the evidence and argument of counsel, the trial court granted the State's motion for continuance.
D. The State files its "Motion for Finding of Forfeiture by Wrongdoing," and Following a Hearing, the Trial Court Grants the State's Motion
On February 28, 2022, the State filed a "Motion for Finding of Forfeiture by Wrongdoing," arguing that Barkley had engaged in wrongdoing that was intended to procure Peters's unavailability at trial and that he had therefore forfeited his right to object to out-of-court statements made by Peters concerning the assault. On March 4, 2022, the trial court held a hearing on the State's motion.
At the hearing, the State's investigator, Jonathan Zellner, testified that he and other officers had attempted to find Peters following the trial court's signing of the writ of attachment but that Peters had not been located. Zellner also testified that he had listened to several recorded phone calls that Barkley had made from jail, and the trial court admitted three recordings of Barkley's jail calls into evidence.
Zellner testified that he did not know the dates that the jail calls had been made.
In one of those calls, Barkley called his mother while using another inmate's phone-privilege credentials. When his mother asked him why he was using someone else's credentials, Barkley responded that he could not talk under his own credentials "because they going to be looking at all this s[***]." Barkley then instructed his mother to join Peters to the call, and she did so. Barkley told Peters, "I can't call you from my PIN or nothing because they're listening and watching that s[***]. And . . . they can use that against me like you asking . . . what you should do, they gonna be like that I'm tampering with a witness, and that's another charge."
On that call, Peters told Barkley that officers had found her and that while some people were telling her not to go to court, her mother was telling her to go. Barkley responded, "No. Hell no. If you go, they're going to put you on the stand. That's what I'm telling you.... You're the number one witness. You're the victim, so they say. But, you're gonna have to get on the stand." After some more discussion, Barkley told Peters, "You don't go.... They're gonna be looking for you.... They're gonna try to make you come up there.... You've gotta chill until this s[***] is over.... S[***] is real now.... It's twenty-five to life." Barkley explained to Peters that she was "the only reliable . . . witness" and that he had a plan to get them out of the situation. Peters responded, "Okay, I ain't gonna go." When Peters questioned what she was to do if law enforcement came to get her to testify, Barkley told her, "Don't let them. You gotta chill. You gotta be out of the way or something." Barkley later reiterated, "You gotta be like you on the run.... You can't be found. You can't be seen. You gotta chill. You can't do nothing. You gotta be out of the way.... We're talking about my motherf[***]ing life, my freedom." Toward the end of the call, Barkley asked Peters where her "head [was] at," and Peters told him that she was going to "lay low [and] not gonna go."
In another call, Barkley again used one of his fellow inmate's phone-privilege credentials to call his mother. He told her, "My sister needs to know . . . that crew that was looking for her, that working crew . . . they know her car and everything too." He told her that the "crew" was "not playing" and had "resources." Barkley told his mother to tell his "sister" that the "crew" had found the "baby mama" of a person named "Luke" by going to the school of the "baby mama's" child.
In another call, Barkley, while using the phone-privilege credentials of a different inmate from the other two calls, called his mother and asked whether she had spoken to his "sister." When Barkley's mother said that she had not spoken to Barkley's "sister," Barkley suggested that they join her in a three-way call. Barkley's mother then initiated a three-way call, and Peters joined the call. After Peters joined the call, Barkley wished her, "Happy Valentine's Day." Barkley later told Peters that "the motherf[***]ers ain't playing," that his trial was on recess until the State "g[o]t ahold" of Peters, and that the State would "eventually [have] to throw it away." Barkley explained that they would have to "stay stiff" and that "if it does come down to it, [Peters would have to tell] them what really happened . . . that [he] didn't do nothing and that [Peters] was just mad at [him] and wanted [him] to go to jail." Barkley then said, "You hear me? . . . That, right there, they . . . gotta drop my s[***]."
Zellner identified the voices of the participants in the three-way call.
Following that hearing, the trial court granted the State's motion, finding by a preponderance of the evidence that Barkley had committed wrongdoing with the intent to prevent Peters's testimony.
E. Peters Invokes Her Fifth Amendment Right at Barkley's March 14, 2022 Trial, and the Trial Court Admits Peters's Out-of-Court Statements Under the Doctrine of Forfeiture by Wrongdoing
On or around March 11, 2022, Peters was found by law enforcement and placed into custody on her writ of attachment. Barkley's trial then resumed on March 14, 2022.
When Barkley's trial resumed, Peters's appointed counsel informed the trial court that Peters intended to invoke her Fifth Amendment right not to testify. The State was allowed to question Peters regarding the invocation of her Fifth Amendment right outside the jury's presence. The State asked, "And is it your plan, if I ask you in front of the jury, to give answers generally consistent with what you've told the police officers about the night of-the day of April 27th?" Peters responded, "No. I invoke my Fifth Amendment, is what I'm saying. I'm sticking to it." When asked about the basis for her invocation of her Fifth Amendment right, Peters stated, "I don't want to testify against [Barkley]. Like, I just don't." The trial court then explained to Peters that she did not have a privilege to simply refuse to testify against Barkley. The trial court asked Peters if she understood that she could be held in contempt of court for refusing the trial court's order for her to testify, and Peters responded that she understood.
When the State later asked questions regarding what Peters had told police about the assault, Peters's appointed counsel-on several occasions-instructed Peters to invoke her Fifth Amendment right, and following that advice, Peters did so. The trial court then asked if it was Peters's intention to invoke her Fifth Amendment right to "the questions from this point forward," and Peters responded, "Yes, sir." The trial court then asked for the State's position with respect to Peters's invocation of the Fifth Amendment, and the State told the trial court that Peters was asserting the right "in bad faith." Soon afterward, the trial court asked Peters's appointed counsel whether it was his recommendation and advice that Peters assert her Fifth Amendment right, and Peters's appointed counsel stated, "Yes, Your Honor, it is."
The State then called Zellner, its investigator, to testify outside the presence of the jury. Zellner testified that he had served Peters with a subpoena on February 7, 2022, to testify at Barkley's trial on February 8, 2022. He stated that it was clear that Peters did not want to be served and that it also became clear that she did not want to cooperate and participate in Barkley's trial. Zellner testified that Peters had not appeared on February 8 at the time required by the subpoena but that one of the State's other investigators had made contact with her and convinced her to appear later that day. He stated that after Peters arrived in the courtroom on February 8 and was admonished by the trial court, he met with Peters, along with a prosecutor and Peters's appointed counsel, in the jury room. During that meeting, Peters admitted to the truthfulness of the statements she had previously made to police officers and Barkley's parole officer, admitted that she had sought medical treatment at Kell West Regional Hospital on the day of the assault and spoken to medical personnel regarding the assault, and admitted to the truthfulness of the statements contained in her affidavit made the day after the assault. Zellner testified that during the meeting in the jury room, the prosecutor explained to Peters that if she was to later testify contrary to what she had told police officers and Barkley's parole officer, she could be subject to a charge of perjury, aggravated perjury, or making a false report to police officers.
On cross-examination, Zellner agreed that Peters had not wanted to testify against Barkley for "many, many months." During that cross-examination, the trial court admitted the following exhibits offered by Barkley for purposes of the hearing on the issue of Peters's invocation of her Fifth Amendment right: (1) Officer Avitia's April 27, 2021 incident report relating to the assault; (2) Peters's April 28, 2021 affidavit describing the assault; (3) Detective Bailey's investigative report regarding the assault that included his discussion of a May 19, 2021 phone call with Peters wherein she told him that "she no longer wanted to prosecute in this matter"; (4) Peters's May 25, 2021 affidavit of non-prosecution; and (5) Peters's July 12, 2021 letter to prosecutors indicating that she did not wish to pursue any action against Barkley.
With respect to the jail-call recordings that had been admitted at the hearing on the State's "Motion for Finding of Forfeiture by Wrongdoing," Zellner testified that Barkley had taken measures to "surreptitiously mask" those calls, including using other inmates' phone-privilege credentials and talking in "code." Zellner stated that based on his review of the calls, it was clear that Barkley did not want Peters to show up to court.
Following Zellner's testimony, the State argued that Peters was not asserting her Fifth Amendment right in good faith. The State alternatively argued that if Peters was permitted to assert her Fifth Amendment right, she would be unavailable to testify, and the State should be allowed to introduce her out-of-court statements regarding the assault because her unavailability had been procured by Barkley's wrongdoing. In response, Barkley's counsel argued, "I don't think you can go both ways. If you say it's a valid assertion, it's a valid assertion.... I don't think you can say, well, she has a valid assertion, but it's really not valid because of something [Barkley] did." The State replied,
I don't know how you can say . . . this is a circular argument. [Barkley's] the reason. He doesn't get to distance himself now because he's not the one that's going to make her do a false statement. No. She's . . . taking this tactic and this approach because she doesn't want to testify against him because he's, in essence, been directing her, encouraging her, prompting her to duck out on the subpoena, duck out on the trial, and to duck out even now.
Following argument from counsel, the trial court made the following rulings with respect to Peters's invocation of her Fifth Amendment right:
The Court finds, based on the information in court at this time, that Ashati Peters has asserted her Fifth Amendment right, that that's on the advice of counsel and, therefore, she will be declared unavailable to testify.
The Court has considered all of the evidence before it today, all of the evidence previously admitted, including the jail calls, the current circumstances before the Court. And based on that, taking into account that the standard is preponderance of the evidence, the Court does find forfeiture by wrongdoing with regards to testimonial statements only. ....
The Court does find that the defendant's actions intended to and did make the witness unavailable. The Court is factoring into, but not exclusively this decision, the prior evidence submitted in-was the basis of the Court's prior order of forfeiture by wrongdoing, the testimony today, from Ashati Peters, and specifically her statements that she did not want to testify, and therefore that was the basis of her refusal to testify, and the other matters before the Court today, her affidavit of non-prosecution, her prior written statements that have been provided to the court, and other testimony presented. And that will be the ruling of the court for purposes of this trial.
Following that hearing, the jury was brought back into the courtroom to hear evidence regarding Barkley's assault of Peters. Over Barkley's Confrontation Clause objection, the jury heard testimony from Baker-Barkley's parole officer-regarding Peters's out-of-court statements to her regarding the assault. The trial court also admitted-over Barkley's Confrontation Clause objection-Peters's April 28, 2021 affidavit regarding the assault. Over Barkley's hearsay and Confrontation Clause objections, the jury heard testimony from Officer Avitia and Detective Bailey regarding Peters's out-of-court statements to them regarding the assault. Over Barkley's hearsay objection, the trial court also admitted medical records from Kell West Regional Hospital from the day of the assault that contained within them statements made by Peters concerning the assault. The jury further heard from Zellner, who testified about Peters's attempts to avoid participation in Barkley's trial and about Barkley's jail calls urging her to avoid participation. Zellner told the jury about his meeting with Peters in the jury room on February 8, 2022, explaining that Peters had confirmed that her prior statements regarding the assault to police officers and Barkley's parole officer had been true, as had the statements contained in her April 28, 2021 affidavit regarding the assault.
The jury ultimately found Barkley guilty of assault family violence with a previous conviction. After hearing evidence on punishment, the jury found the enhancement allegations to be true and assessed Barkley's punishment at twenty-five years' confinement. The trial court sentenced him accordingly, and this appeal followed.
III. Discussion
In his sole point, Barkley argues that the trial court abused its discretion by admitting Peters's out-of-court statements regarding the assault because the doctrine of forfeiture by wrongdoing does not apply here.
A. Applicable Law and Standard of Review
In a criminal prosecution, a defendant has a Sixth Amendment right to confront adverse witnesses. Giles v. California, 554 U.S. 353, 357-58, 128 S.Ct. 2678, 2682 (2008) (citing Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374 (2004)). In a criminal prosecution, hearsay-defined as an out-of-court oral or written statement offered in evidence to prove the truth of the matter asserted in the statement-is inadmissible unless a statute or rule provides otherwise. Tex. R. Evid. 802; see Tex. R. Evid. 801(a), (d). The United States Supreme Court has recognized, however, that certain exceptions exist that allow testimonial hearsay statements to be admitted even though the defendant has not had the opportunity to confront the declarant. Giles, 554 U.S. at 358, 128 S.Ct. at 2682. One such exception-referred to as the doctrine of forfeiture by wrongdoing-applies to declarations made by a declarant whose unavailability at trial was wrongfully procured by the defendant. Id. at 359, 128 S.Ct. at 2683. This doctrine is based on the principle that "any tampering with a witness should once [and] for all estop the tamperer from making any objection based on the results of his own chicanery." Gonzalez v. State, 195 S.W.3d 114, 117 (Tex. Crim. App. 2006). Without such a rule, there would be "an intolerable incentive for defendants to bribe, intimidate, or even kill witnesses against them." Giles, 554 U.S. at 365, 128 S.Ct. at 2686. "[T]he domestic-violence context is particularly suitable for the application of the forfeiture by wrongdoing doctrine." Powell v. State, No. 02-19-00206-CR, 2021 WL 5370163, at *72 (Tex. App.-Fort Worth Nov. 18, 2021, pet. ref'd) (mem. op. on reh'g, not designated for publication) (citing Giles, 554 U.S. at 377, 128 S.Ct. at 2693).
Article 38.49 of the Texas Code of Criminal Procedure is a codification of the forfeiture by wrongdoing doctrine. See Tex. Code Crim. Proc. Ann. art. 38.49. Article 38.49 provides that a defendant who "wrongfully procures the unavailability of a witness . . . may not benefit from the wrongdoing by depriving the trier of fact of relevant evidence . . . [and] forfeits the party's right to object to the admissibility of evidence or statements based on the unavailability of the witness." Id. Article 38.49 requires the trial court to determine, outside the presence of the jury, "whether forfeiture by wrongdoing occurred by a preponderance of the evidence." Id. The evidence to be considered by the trial court in determining forfeiture by wrongdoing is "[e]vidence and statements related to a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of a witness." Id. The party offering evidence of wrongdoing is not required to show that "the actor's sole intent was to wrongfully cause the witness's or prospective witness's unavailability" or that "the actions of the actor constituted a criminal offense." Id. Direct or circumstantial evidence may be used to show that the defendant's wrongful conduct caused a witness's unavailability. See Brown v. State, 618 S.W.3d 352, 357 (Tex. Crim. App. 2021) ("[C]ourts have recognized that procurement or causation need not be proven directly, but may be established by inference."); 23 Corpus Juris Secundum, Criminal Procedure and Rights of Accused § 1182 (2023) ("Circumstantial evidence may be used to establish, in whole or in part, that the witness's unavailability was procured by the defendant.").
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). Under this standard, the trial court's ruling will be upheld as long as it falls within the "zone of reasonable disagreement" and is correct under any theory of law applicable to the case. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). If there is some evidence to support the trial court's decision to admit evidence, there is no abuse of discretion, and we must defer to that decision. Osbourn, 92 S.W.3d at 538. Because the forfeiture by wrongdoing doctrine relates to the admission of otherwise objectionable evidence, we utilize the abuse-of-discretion standard in reviewing a trial court's admission of evidence under that doctrine. Dobbins v. State, No. 07-20-00095-CR, 2021 WL 2521564, at *3 (Tex. App.-Amarillo June 18, 2021, no pet.) (mem. op., not designated for publication); Schindler v. State, No. 02-17-00241-CR, 2018 WL 4924946, at *5 (Tex. App.-Fort Worth Oct. 11, 2018, pet. ref'd) (mem. op., not designated for publication). "When assessing evidence regarding acts alleged to have procured a witness' unavailability, we draw all reasonable inferences in favor of the trial court's finding." Byrd v. State, No. 07-20-00234-CR, 2022 WL 2719060, at *6 (Tex. App.-Amarillo July 13, 2022, pet. ref'd) (mem. op., not designated for publication).
B. Analysis
In his brief, Barkley argues that "there is no causation between any of his alleged conduct and [Peters's] assertion of her Fifth Amendment right not to testify in this matter" and that "[t]here [is] no evidence whatsoever . . . to show that [Barkley] in any way influenced [Peters] to sign an affidavit of non-prosecution." We disagree with both of those contentions.
Here, the record reflects that Peters described the assault to Officer Avitia and to Barkley's parole officer on the day of the assault and that she was willing to prosecute. The record also contains a jail-call recording between Barkley and Peters in which Barkley told Peters to "sign those d[***] papers," and Barkley clarified that he was referring to the "non-prosecution papers." That recording reflects that Peters was hesitant to sign the referenced "non-prosecution papers." To that end, when Barkley told Peters that she needed to sign the papers because "[t]hey trying to f[***] me off," Peters responded, "I bet they is, just like you did me." She also told Barkley, "I don't feel like I should go do what you want me to do," noting that she had told Barkley to keep his hands to himself. She also expressed exasperation that Barkley was calling her saying, "I'm to the point [where] I don't even want you calling me. Like what you calling me for?" Notably, during that call, Barkley told Peters, "I'll pay you whatever, whatever, like, for real."
At some point following that call-and a reasonable inference could be made that because of that call-Peters changed her mind, signing an affidavit of nonprosecution and informing Detective Bailey and prosecutors that she did not want to pursue the case against Barkley. Barkley's attempts to keep Peters away from law enforcement and the courtroom continued. He made three phone calls using other inmates' phone-privilege credentials. On one of the calls, Barkley explained to his mother that he was not using his own credentials "because they going to be looking at all this s[***]." When Peters questioned why Barkley was not using his own credentials, he told her, "I can't call you from my PIN or nothing because they're listening and watching that s[***]. And . . . they can use that against me like you asking . . . what you should do, they gonna be like that I'm tampering with a witness, and that's another charge." See Tex. Penal Code Ann. § 36.05(a) (providing that a person commits an offense of tampering with a witness if, "with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness . . . in an official proceeding, or he coerces a witness . . . in an official proceeding" to, among other things, "withhold any testimony" or "elude legal process summoning [her] to testify or supply evidence" or "absent [herself] from an official proceeding to which [she] has been legally summoned").
During those calls, Barkley repeatedly urged Peters to stay away from investigators trying to find her and to not testify against him. On one call, Peters mentioned that her mother had told her to go to court, and Barkley responded, "No. Hell no. If you go, they're going to put you on the stand." After more discussion, Barkley told Peters, "You don't go.... They're gonna be looking for you.... They're gonna try to make you come up there.... You've gotta chill until this s[***] is over.... S[***] is real now.... It's twenty-five to life." When Peters asked what she was to do if law enforcement came to get her to testify, Barkley told her, "Don't let them. You gotta chill. You gotta be out of the way or something." Barkley later reiterated, "You gotta be like you on the run.... You can't be found. You can't be seen. You gotta chill. You can't do nothing. You gotta be out of the way.... We're talking about my motherf[***]ing life, my freedom."
During another call, Barkley-while talking in what Zellner testified was code-stated, "My sister needs to know . . . that crew that was looking for her, that working crew . . . they know her car and everything too." In another call, Barkley asked that his mother join his "sister" to their call, and after Barkley's mother initiated a three-way call, Peters joined the call. During that call, Barkley told Peters that "the motherf[***]ers ain't playing," that his trial was on recess until the State "g[o]t ahold" of Peters, and that the State would "eventually [have] to throw it away." Barkley explained that they would have to "stay stiff" and that "if it does come down to it, [Peters would have to tell] them what really happened . . . that [he] didn't do nothing and that [Peters] was just mad at [him] and wanted [him] to go to jail."
When Peters was eventually found by the State's investigators and brought to trial, she invoked her Fifth Amendment right against self-incrimination. She explained that her basis for invoking her Fifth Amendment right was that she did not want to testify against Barkley. Notably, forfeiture by wrongdoing can apply when a defendant wrongfully causes a witness to invoke the Fifth Amendment. See Dobbins, 2021 WL 2521564, at *5 (affirming trial court's forfeiture-by-wrongdoing finding that defendant had caused witness's unavailability by encouraging her to "plead the Fifth"). And, as noted above, circumstantial evidence may be used to show that a defendant's wrongful conduct caused a witness's unavailability. See Brown, 618 S.W.3d at 357; 23 Corpus Juris Secundum, Criminal Procedure and Rights of Accused § 1182.
Having reviewed the evidence below, and after drawing all reasonable inferences in favor of the trial court's ruling, we conclude that the trial court did not abuse its discretion by concluding that the State showed by a preponderance of the evidence that Barkley wrongfully procured Peters's unavailability at trial. See Dominguez v. State, No. 05-20-00968-CR, 2022 WL 3024330, at *5 (Tex. App.-Dallas July 29, 2022, no pet.) (mem. op., not designated for publication) (holding that trial court did not abuse its discretion by concluding that the State showed by a preponderance of the evidence that defendant wrongfully procured witness's unavailability at trial where defendant contacted witness "dozens of times in knowing violation of a protective order," told her that their stories needed to "coincide," urged her to execute an affidavit of non-prosecution, told her to "[g]et the hell out of Dodge," and explained to her "that as long as she did not appear, the State 'ain't got s[***]'"); Byrd, 2022 WL 2719060, at *7 (holding that "the record supports the determination that [defendant] wrongfully procured [witness's] unavailability" where, although "there [was] no evidence of a direct threat or command from [defendant] to [witness], the record certainly evidence[d] an offer of a bribe"); Dobbins, 2021 WL 2521564, at *5 (holding that "[t]he record shows the trial court had before it evidence from which it could have concluded [defendant] procured [witness's] unavailability" where defendant instructed witness to "plead the fifth"); Espinoza v. State, No. 05-17-00547-CR, 2018 WL 6716619, at *13 (Tex. App.-Dallas Dec. 21, 2018, no pet.) (mem. op., not designated for publication) ("Though there is no evidence of a direct threat or command from [defendant] to [witness] to avoid service or to not appear in court, the record is replete with evidence that this is precisely the outcome [defendant] intended.... We cannot conclude, based on this record, that the trial court abused its discretion in finding a forfeiture by wrongdoing and admitting [witness's] out-of-court statements.").
In his brief, Barkley maintains that Peters pled the Fifth Amendment upon the advice of her appointed counsel. According to Barkley, because Peters pled the Fifth Amendment upon the advice of her appointed counsel, the trial court abused its discretion by holding that Barkley wrongfully procured Peters's unavailability at trial. We disagree. Just because there was some evidence to suggest that Peters invoked her Fifth Amendment right due to her appointed counsel's concern that she avoid prosecution for perjury does not mean that the trial court abused its discretion here; there was ample other evidence to suggest that Peters had pled the Fifth Amendment because of Barkley's repeated urging that she avoid testifying. Indeed, when asked about the basis for her invocation of her Fifth Amendment right, Peters stated, "I don't want to testify against [Barkley]. Like, I just don't."
Accordingly, the trial court did not abuse its discretion by admitting Peters's out-of-court statements regarding the assault. See Powell, 2021 WL 5370163, at *70 ("Under the doctrine of forfeiture by wrongdoing, a defendant is barred from asserting his right of confrontation or complaining about hearsay when he has wrongfully procured the witness's unavailability."). We overrule Barkley's sole point.
IV. Conclusion
Having overruled Barkley's sole point, we affirm the trial court's judgment.