No. 05-06-00788-CR
Opinion Filed August 1, 2007. DO NOT PUBLISH Tex. R. App. P. 47.2(b).
On Appeal from the 422nd District Court Kaufman County, Texas Trial Court Cause No. 23914-422.
Before Justices Moseley, O'Neill, and Francis.
JIM MOSELEY, Justice.
A jury convicted Brentwonne M. Wilson of aggravated robbery and the trial court assessed punishment at ten years' confinement and a fine of $5000. Wilson appeals and argues in two points of error that the evidence was legally insufficient to prove the complainant's name as alleged in the indictment and that the trial court admitted a co-defendant's written statement in violation of Wilson's right of confrontation under the U.S. Constitution. We conclude there was no material variance between the indictment and the proof at trial. We also conclude the admission of the co-defendant's testimonial statement was constitutional error and the error was not harmless beyond a reasonable doubt. We reverse the trial court's judgment and remand for further proceedings.
Background
Two men wearing stocking masks robbed the South Side Grocery store in Terrell. They entered the store and went directly behind the counter to a check-cashing area and took the money; one of the men carried a rifle with a camouflage-patterned stock. The owner, the store clerk, and the store butcher were in the store at the time of the robbery. Police saw two masked men run from the store and get in a car driven by a third man. During the chase, both masked men jumped from the car. The driver, who was not wearing a mask, jumped from the car just before it crashed. Police officer Joe Hobbs recognized the driver as Kevin Emeory. Police found a camouflaged rifle near the car and papers indicating the car belonged to Emeory. A cell phone and items from the store were also found in the car. A detective later determined the cell phone belonged to Wilson and that a call from it had been placed to Emeory several minutes before the robbery. When arrested, Emeory confessed and gave a statement to police implicating Wilson and another man. The owner of the store and a store clerk testified they recognized the two men as customers of the store. Wilson had shopped and cashed his paychecks at the store for at least four years. They recognized Wilson's voice and, even though he was wearing a mask, his facial features. They also testified the two men had robbed the store once before. The owner thought the robbers were about her height, five foot six inches, but the clerk said the robber with the rifle was about six foot or six foot one inches tall and that the owner was mistaken about the man's height because she did not see well. After the robbery, Wilson returned to the store to cash a check; the clerk recognized him, but Wilson avoided her efforts to engage him in conversation. The butcher at the store, Robert Horn, testified for the defense. He said he was in the store at time of the robbery, that he had known Wilson for several years, and that he was positive Wilson was not one of the robbers. He thought the man with the rifle was Kenneth Mimms. Horn admitted he had been convicted of robbery and served time in prison. He was also a friend of Wilson's family. Wilson testified that he was not involved in the robbery and had a good job at Fuji Color for six years. He said he lost his cell phone sometime before the robbery and that he was working at Fuji Color the night of the robbery. The detective testified that he contacted Fuji Color and learned Wilson's shift did not begin until later that evening. Material Variance
In his second point of error, Wilson contends the evidence was "legally insufficient to prove the complainant's name." Wilson asserts there is a fatal variance between the indictment and the proof at trial. He argues that the indictment listed the complainant as "Kim Young," but the witness at trial testified here name is "Young Kim." The record indicates the State called "Kim Young" to testify. When asked to state her name, the witness said, "Young Kim." However, she later responded "yes" when asked, "You're Ms. Young, right?" Wilson does not challenge the legal sufficiency of the evidence under the federal due process standard announced in Jackson v. Virginia, 443 U.S. 307, 319 (1979). Thus we review his complaint under state law. See Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App. 2002). Under Gollihar v. State, 46 S.W.3d 243, 254 (Tex.Crim.App. 2001) and Malik v. State, 953 S.W.2d 234, 236-40 (Tex.Crim.App. 1997), evidentiary sufficiency should be measured against the "elements of the offense as defined by the hypothetically correct jury charge for the case" in all sufficiency cases. See Fuller, 73 S.W.3d at 252 (" Gollihar thus made Malik's evidentiary sufficiency standard into a purely state law standard that is 'foreign to federal constitutional norms.'"). We conduct a materiality inquiry in all cases that involve a "sufficiency of the evidence claim based upon a variance between the indictment and the proof"; only a "material" variance will render the evidence insufficient. See Fuller, 73 S.W.3d at 253. This inquiry requires a determination of whether the variance deprived the defendant of notice of the charges and whether the variance subjects the defendant to the risk of later being prosecuted for the same offense. See id. The hypothetically correct jury charge takes into consideration the material variance doctrine; in the hypothetically correct charge "[a]llegations giving rise to immaterial variances may be disregarded . . . but allegations giving rise to material variances must be included." See id. (quoting Gollihar, 46 S.W.3d at 257). Wilson relies on Ward v. State, 829 S.W.2d 787 (Tex.Crim.App. 1992), overruled on other grounds by Riney v. State, 28 S.W.3d 561, 566 (Tex.Crim.App. 2000). Ward was indicted for burglary by entering a Radio Shack store without the effective consent of Seth Haller. Id. at 788. At trial, Steve Scott testified he was the manager of the Radio Shack store that was burglarized and that Haller was the manager of a different Radio Shack store. Id. at 789. The court of criminal appeals concluded that because the indictment was not effectively amended to allege the name of the owner who was actually robbed, "the State's proof that the owner of the burglarized building was Steve Scott was insufficient to prove the owner was Seth Haller as alleged in the indictment." Id., 829 S.W.2d at 795. Here, the evidence indicates the person robbed was the same person identified in the indictment and that she went by either "Young Kim" or "Ms. Young." Further, Ward was decided before the Malik, Gollihar, and Fuller and the development of current sufficiency standards and the material variance doctrine. The evidence in Ward indicated that the variance could have interfered with preparation of the defense and that the defendant might be subjected to later prosecution of the same crime. Thus, in Gollihar's terminology, the variance in Ward was material and fatal to the conviction. See Gollihar, 46 S.W.3d at 257. However here, as in Fuller, the name of the complainant is not a statutory element of the offense. See Fuller, 73 S.W.3d at 254; Gollihar, 46 S.W.3d at 254 ("hypothetically correct jury charge" encompasses statutory elements of the offense as modified by the charging instrument). And the variance between the indictment and the proof is immaterial. There is no indication in the record that Wilson did not know whom he was accused of robbing or that he was surprised by the proof at trial. See Gollihar, 46 S.W.3d at 257. Finally, the variance does not subject Wilson to another prosecution for the same offense. See id. We overrule Wilson's second point of error. Confrontation Clause
Wilson's first point of error argues the trial court erred in admitting a co-defendant's written confession over Wilson's objection on Confrontation Clause grounds. The Confrontation Clause guarantees the accused in all criminal prosecutions has the right "to be confronted with the witnesses against him." U. S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36 (2004). Under the Confrontation Clause, out-of-court testimonial statements of a witness who does not appear at trial are not admissible unless the witness is unavailable to testify and the defendant has had a prior opportunity for cross-examination. Crawford, 541 U.S. at 59; Wall v. State, 184 S.W.3d 730, 736 (Tex.Crim.App. 2006); Deener v. State, 214 S.W.3d 522, 525 (Tex.App.-Dallas 2006, no pet. h.). The trial court held a hearing on the admissibility of Emeory's out-of-court statement outside the presence of the jury. Wilson objected that he could not cross-examine the document and argued the State should be required to bring Emeory into court. The State indicated it had subpoenaed Emeory and offered him testimonial immunity so he could not invoke his right against self-incrimination. Both Emeory and his attorney were present at the hearing. The State called Emeory to testify during the hearing that he understood he could be compelled to testify. Wilson did not cross-examine the witness. The trial court overruled Wilson's objection, found that Emeory was available to testify, but allowed the State to offer Emeory's out-of-court statement through the detective and left it to either party to call Emeory as a witness. Before the jury, the State offered Emeory's statement through the detective. Wilson objected that the lack of cross-examination violated his constitutional rights. The State responded that it had subpoenaed Emeory, granted him testimonial immunity, and "if defense counsel wishes to cross examine him, he is here and available for cross-examination." The trial court overruled the objection and admitted the out-of-court statement. In his statement to police, Emeory said that Wilson approached him about driving for the robbery and said the he and another man had robbed the store once before and it was easy. Emeory said Wilson and Kenneth Mimms came to his mother's house with a camouflage rifle and Emeory drove them to the store and waited for them to return. They came back wearing masks and carrying the rifle. Emeory said he gave the statement because Mimms and Wilson refused to give him any of the money and he wanted to help the police in order to get the best deal that he could get. While the Supreme Court has not provided a comprehensive definition of "testimonial," it is clear that " ex parte in-court testimony or its functional equivalent" such as affidavits, custodial examinations, prior testimony not subject to cross-examination, or "similar pretrial statements that declarants would reasonably expect to be used prosecutorially" qualify as core testimonial statements. Crawford, 541 U.S. at 51-52; Deener, 214 S.W.3d at 526. Emeory's statement was given after his arrest for the armed robbery and after he had been given his Miranda warnings. The detective who took the statement told the jury in this case that he explained the warnings to Emeory before his statement because the detective wanted to be able to use anything he said as evidence. Emeory's statement was thus testimonial. Crawford, 541 U.S. at 53 ("In sum, even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class."). The State does not argue to the contrary. Emeory's testimonial statement, therefore, was not admissible over Wilson's confrontation objection unless the State showed that Emeory was unavailable and that Wilson had a prior opportunity for cross-examination. Crawford, 541 U.S. at 59. The State, however, takes the position that if the witness is available but the defendant chooses not to call him, the defendant waives his right of confrontation. We disagree. We recently rejected a similar argument in Bratton v. State, 156 S.W.3d 689, 694 (Tex.App.-Dallas 2005, pet. ref'd). In Bratton, the trial court admitted the out-of-court testimonial statements of two accomplices even though they were both present at the trial. Id. at 693. The State argued that Bratton chose not to call the witnesses as a matter of trial strategy and could not complain that his right of confrontation was denied. Id. at 694. The State makes the same argument here and asks us to reconsider Bratton and "hold that the Confrontation Clause is not implicated by use of testimonial statements from present, available non-testifying accomplices." We decline to do so. As we said in Bratton, "we find nothing in Crawford or elsewhere suggesting that a defendant waives his right to confront a witness whose testimonial statement was admitted into evidence by failing to call him as a witness at trial." Id. As the party offering the out-of-court statement, the State has the burden of showing the statement is admissible-the State must show in the first instance that the declarant is unavailable; and, if so, it must then show the defendant had a prior opportunity to cross-examine the declarant. Bratton, 156 S.W.3d at 694 (citing cases). The holding urged by the State would eliminate the first element of the State's burden under Crawford-proof that the witness who made the out-of-court testimonial statement was unavailable to testify. See Crawford, 541 U.S. at 59. Because Emeory was available to testify, the State failed to make the initial showing required for admission of the out-of-court statement. The State argues that Wilson had an opportunity to cross-examine Emeory at the hearing outside the presence of the jury, but failed to do so. We need not address whether this hearing afforded Wilson with a prior opportunity to cross-examine Emeory within the meaning of Crawford because the State failed to show that Emory was unavailable to testify-the first requirement for admitting an out-of-court testimonial statement over a confrontation objection. We conclude the trial court erred in admitting the testimonial statement over Wilson's Confrontation Clause objection. Because admitting evidence in violation of the Confrontation Clause is constitutional error, we must reverse the judgment unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. Tex. R. App. P. 44.2(a). In determining whether constitutional error in admitting evidence in violation of Crawford is harmless beyond a reasonable doubt, we consider: (1) the importance of the out-of-court statement to the State's case; (2) whether the out-of-court statement was cumulative of other evidence; (3) the presence or absence of evidence corroborating or contradicting the out-of-court statement on material points; and (4) the overall strength of the prosecution's case. Davis v. State, 203 S.W.3d 845, 852 (Tex.Crim.App. 2006), cert. denied,__U.S.__, 127 S.Ct. 2037 (2007). We may "consider other factors as well, but, in the final analysis, the reviewing court must be convinced, beyond a reasonable doubt, that the admission of Crawford-barred testimony would probably not have had a significant impact on the mind of an average juror." Id. The question for the reviewing court is not whether the jury verdict was supported by sufficient, properly admitted evidence; instead, we assess the likelihood that the constitutional error was actually a contributing factor in the jury's deliberations in arriving at a verdict. See Scott v. State, No. PD-0862-05, slip op. at p. 26 (Tex.Crim.App. June 6, 2007). In making this determination, we may consider additional factors such as the source and nature of the error, to what extent, if any, it was emphasized by the State, and how weighty the jury may have found the erroneously admitted evidence to be compared to the balance of the evidence on a particular issue. Id. (citing Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App. 1989)). We must decide whether there is a reasonable possibility that the Crawford error moved the jury from a state of non-persuasion to one of persuasion on a particular issue. Davis, 203 S.W.3d at 852-53. "Ultimately, after considering these various factors, the reviewing court must be able to declare itself satisfied, to a level of confidence beyond a reasonable doubt, 'that the error did not contribute to the conviction' before it can affirm it." Scott, No. PD-0862-05, slip op. at p. 26 (quoting Tex. R. App. P. 44.2(a)) (emphasis added). The State argues the error was harmless beyond a reasonable doubt based on Bratton. In Bratton, we concluded that Crawford error was harmless where one of three accomplices testified at trial subject to cross-examination and the out-of-court statements of the other accomplices provided little if any additional evidence concerning Bratton's involvement. Bratton, 156 S.W.3d at 695. In this case, however, no accomplice testified at trial or was subject to cross-examination. Both men wore masks when they robbed the store. While two eyewitnesses identified Wilson as one of the masked men, they did not agree about the height of the robbers. A third eyewitness, Horn, knew Wilson and testified he was certain Wilson was not one of the robbers. Wilson told police that the cell phone found in the car was not his and that he purchased pre-paid cell phones and resold them to people in the community. Wilson testified at trial that he had lost his cell phone before the robbery. The rifle used in the robbery was distinctive and was found near the Emeory's car after the police chase. But the only evidence connecting Wilson with the rifle, other than Emeory's statement, was the eyewitness testimony that he was the one with the gun. The eyewitness testimony was conflicting about Wilson's involvement and the jury could reasonably have relied on Emeory's statement to resolve the conflict. The record shows the importance of Emeory's statement to the State's case. Before offering the statement, the State emphasized the detective's procedure in obtaining the statement and warning Emeory of his Miranda rights. Then in response to Wilson's confrontation objection, the prosecutor stated before the jury that Emeory was available for cross-examination if Wilson wanted to call him-implying Wilson was required to call the witness to exercise his right of confrontation and possibly leaving the impression that Wilson's failure to call Emeory lent credibility to Emeory's statement. In closing arguments, both sides argued about Emeory's credibility and the reliability of his statement. Yet, Emeory's statement had never been subjected to the testing required by the constitution. Crawford, 541 U.S. at 61 (Confrontation Clause "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination"). The State argued that Emeory's statement made sense and corroborated the other evidence. The jury could have concluded that it should resolve any doubts about the evidence by relying on Emeory's statement as a summary of everything else. After reviewing the record, we are unable to say, to a level of confidence beyond a reasonable doubt, that the erroneously admitted evidence did not contribute to the jury's verdict. See Scott, No. PD-0862-05, slip op. at 36. We conclude that there is at least a reasonable possibility the error in admitting Emeory's statement contributed to the jury's verdict. See id. We sustain Wilson's first point of error, reverse the trial court's judgment and remand for further proceedings.