John Alberto Roman v. the State of Texas
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Opinion
Opinion issued December 28, 2023
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00748-CR ——————————— JOHN ALBERTO ROMAN, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 25th District Court Colorado County, Texas Trial Court Case No. 20-153
MEMORANDUM OPINION
A jury convicted Appellant John Alberto Roman of aggravated robbery and
unlawful possession of firearm by a felon. After finding an enhancement allegation
true, the jury assessed Appellant’s punishment at 99 years’ confinement for the
aggravated robbery offense and 10 years’ confinement for the offense of unlawful possession of firearm by a felon, both to be served in the Texas Department of
Criminal Justice—Institutional Division.
On appeal, Appellant argues (1) the trial court barred him from asserting his
rights under the Confrontation Clause of the Sixth Amendment by admitting out-of-
court statements from a witness who was not available to be cross-examined under
the doctrine of forfeiture by wrongdoing, and (2) the trial court erred by failing to
include a verdict sheet for the lesser included offense of aggravated assault.
We affirm.
Background
On October 16, 2020, 58-year-old Craig Anthony Wilson was shot in the
shoulder. A grand jury indicted Appellant John Alberto Roman for three offenses
stemming from Wilson’s shooting: (1) aggravated assault, (2) aggravated robbery,
and (3) felon in possession of a firearm. Roman’s case proceeded to a jury trial.
A. Craig Anthony Wilson
Wilson, the complainant, testified that he texted 17-year-old Bre’Andrea
Wiley when he got off of work on October 16, 2020, and he asked Wiley if he could
come visit her. Wiley told Wilson he could stop by her apartment building in
Columbus, Texas. Wilson acknowledged the purpose of his visit was to pay Wiley
to have sex with him in his SUV. According to Wilson, Wiley had texted him the
2 night before and told him she needed money to get her hair done and she wanted to
have sex with him.
When Wilson arrived at Wiley’s apartment building, he parked his SUV in
the parking lot, and he waited for Wiley. Wilson had already put the SUVs backseats
down in anticipation of his meeting with Wiley. According to Wilson, Wiley came
out of her apartment almost immediately and she was carrying something he
believed to be a towel in her hand. Wiley kept looking behind her as she approached
Wilson’s SUV. Wiley first attempted to open the rear passenger-side door of the
SUV, but it was locked. She then got into the front passenger seat, and she reached
back and unlocked the rear passenger-seat door. According to Wilson, Wiley did
not close her door or answer when he asked her why she unlocked the back door.
Appellant John Alberto Roman, who had a taser in his hand, jumped in the
SUV through the unlocked rear passenger-side door, tased Wilson’s shoulder and
asked Wilson, “Where’s the money at?” Wilson, who thought the taser1 was a gun,
jumped into the backseat with Roman to try to get the taser from him. Roman
dropped the taser during his struggle with Wilson. Roman then reached behind him
and pulled out a pistol. Roman and Wilson began struggling over the pistol.
According to Wilson, Roman intentionally shot at him twice while they were
struggling, and one bullet struck Wilson in the shoulder. After shooting Wilson,
1 The taser was located on the end of a long baton, referred to as a stun baton.
3 Roman climbed out of the SUV through the rear passenger-side door and ran away.
Wiley was no longer in the SUV and Wilson did not know when she left.
Wilson testified he knew the man who shot him was Roman because he had
known Roman for several years, and he saw Roman’s face and recognized his voice.
According to Wilson, Roman was wearing a cap and some silver-looking, square
glasses when he climbed in the SUV. Wilson testified he never asked Roman to get
into his SUV.
After Roman ran away, Wilson climbed back into the driver’s seat and drove
to his home. When he arrived at home, Wilson inspected his SUV for damage and
he collected the stun baton Roman had used, Roman’s cap and eyeglasses, and a
fired gun shell from off the floorboard. Wilson put the taser, cap, and glasses in the
SUV’s cargo area and he threw the shell in the trash inside his home. Wilson told
his wife, Vernita, that someone had just shot him in the shoulder when he got out of
his SUV. Wilson testified he lied to Vernita because he did not want her to know he
had been paying Wiley to have sex with him. Neither Wilson nor Vernita called the
police to report the shooting.
Vernita took Wilson to the Columbus Community Hospital emergency room
and someone at the hospital notified the Colorado County Sheriff’s Office that
Wilson had been shot. When the responding officers questioned Wilson about his
gunshot wound, Wilson told them he had been shot while standing in his yard after
4 he got home from work. He did so because he did not want Vernita to know about
his sexual relationship with Wiley. After inspecting Wilson’s SUV and the outside
of his home where he allegedly had been shot, the officers told Wilson, who was still
in the hospital, that his story was not “adding up.” At that point, Wilson admitted
lying to the officers and Vernita about the shooting. He identified Roman as the
shooter. Wilson also identified Roman in court as the person who demanded money
from him and then shot him in the shoulder.
On cross-examination, Wilson admitted he had paid Wiley for sex on four or
five prior occasions after her seventeenth birthday. Wilson denied ever going inside
Wiley’s apartment and insisted that he and Wiley only had sex in his SUV.
B. Deputy Andrew Lopez and Deputy Ryan Ohl
On October 16, 2020, Deputy Andrew Lopez, Deputy Josh Solis, and Deputy
Ryan Ohl with the Colorado County Sheriff’s Office responded to a call at the
Columbus Community Hospital regarding a gunshot victim. Deputy Lopez, who
met with Wilson and Vernita at the hospital, testified that Wilson had a gunshot
wound on the top left of his shoulder that was bleeding and appeared “fresh.” Wilson
told Deputy Lopez that someone had shot him while he was standing outside his
home, but he did not know the shooter’s identity.
Deputy Solis and Deputy Ohl went to Wilson’s home to inspect the alleged
crime scene while Deputy Lopez talked to Wilson and Vernita at the hospital. Other
5 than a small amount of blood on a rock in the driveway, Deputy Solis and Deputy
Ohl did not find any shell casings or other evidence indicating that the shooting had
occurred at that location, as Wilson claimed. After they reported their findings to
Deputy Lopez, Deputy Lopez briefly inspected Wilson’s SUV, which was parked at
the hospital. Deputy Lopez testified there were three bullet indentations in the rear
driver’s side door, and a “profuse” amount of blood on the SUV’s driver’s seat,
dashboard, front passenger seat, back seat, and in the cargo area. Based on his
observations, Deputy Lopez concluded the shooting had occurred inside Wilson’s
SUV, not outside Wilson’s home as Wilson claimed.
Deputy Ohl corroborated Deputy Lopez’s testimony regarding their
investigation of Wilson’s home and SUV. Deputy Ohl testified that he and Deputy
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Opinion issued December 28, 2023
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00748-CR ——————————— JOHN ALBERTO ROMAN, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 25th District Court Colorado County, Texas Trial Court Case No. 20-153
MEMORANDUM OPINION
A jury convicted Appellant John Alberto Roman of aggravated robbery and
unlawful possession of firearm by a felon. After finding an enhancement allegation
true, the jury assessed Appellant’s punishment at 99 years’ confinement for the
aggravated robbery offense and 10 years’ confinement for the offense of unlawful possession of firearm by a felon, both to be served in the Texas Department of
Criminal Justice—Institutional Division.
On appeal, Appellant argues (1) the trial court barred him from asserting his
rights under the Confrontation Clause of the Sixth Amendment by admitting out-of-
court statements from a witness who was not available to be cross-examined under
the doctrine of forfeiture by wrongdoing, and (2) the trial court erred by failing to
include a verdict sheet for the lesser included offense of aggravated assault.
We affirm.
Background
On October 16, 2020, 58-year-old Craig Anthony Wilson was shot in the
shoulder. A grand jury indicted Appellant John Alberto Roman for three offenses
stemming from Wilson’s shooting: (1) aggravated assault, (2) aggravated robbery,
and (3) felon in possession of a firearm. Roman’s case proceeded to a jury trial.
A. Craig Anthony Wilson
Wilson, the complainant, testified that he texted 17-year-old Bre’Andrea
Wiley when he got off of work on October 16, 2020, and he asked Wiley if he could
come visit her. Wiley told Wilson he could stop by her apartment building in
Columbus, Texas. Wilson acknowledged the purpose of his visit was to pay Wiley
to have sex with him in his SUV. According to Wilson, Wiley had texted him the
2 night before and told him she needed money to get her hair done and she wanted to
have sex with him.
When Wilson arrived at Wiley’s apartment building, he parked his SUV in
the parking lot, and he waited for Wiley. Wilson had already put the SUVs backseats
down in anticipation of his meeting with Wiley. According to Wilson, Wiley came
out of her apartment almost immediately and she was carrying something he
believed to be a towel in her hand. Wiley kept looking behind her as she approached
Wilson’s SUV. Wiley first attempted to open the rear passenger-side door of the
SUV, but it was locked. She then got into the front passenger seat, and she reached
back and unlocked the rear passenger-seat door. According to Wilson, Wiley did
not close her door or answer when he asked her why she unlocked the back door.
Appellant John Alberto Roman, who had a taser in his hand, jumped in the
SUV through the unlocked rear passenger-side door, tased Wilson’s shoulder and
asked Wilson, “Where’s the money at?” Wilson, who thought the taser1 was a gun,
jumped into the backseat with Roman to try to get the taser from him. Roman
dropped the taser during his struggle with Wilson. Roman then reached behind him
and pulled out a pistol. Roman and Wilson began struggling over the pistol.
According to Wilson, Roman intentionally shot at him twice while they were
struggling, and one bullet struck Wilson in the shoulder. After shooting Wilson,
1 The taser was located on the end of a long baton, referred to as a stun baton.
3 Roman climbed out of the SUV through the rear passenger-side door and ran away.
Wiley was no longer in the SUV and Wilson did not know when she left.
Wilson testified he knew the man who shot him was Roman because he had
known Roman for several years, and he saw Roman’s face and recognized his voice.
According to Wilson, Roman was wearing a cap and some silver-looking, square
glasses when he climbed in the SUV. Wilson testified he never asked Roman to get
into his SUV.
After Roman ran away, Wilson climbed back into the driver’s seat and drove
to his home. When he arrived at home, Wilson inspected his SUV for damage and
he collected the stun baton Roman had used, Roman’s cap and eyeglasses, and a
fired gun shell from off the floorboard. Wilson put the taser, cap, and glasses in the
SUV’s cargo area and he threw the shell in the trash inside his home. Wilson told
his wife, Vernita, that someone had just shot him in the shoulder when he got out of
his SUV. Wilson testified he lied to Vernita because he did not want her to know he
had been paying Wiley to have sex with him. Neither Wilson nor Vernita called the
police to report the shooting.
Vernita took Wilson to the Columbus Community Hospital emergency room
and someone at the hospital notified the Colorado County Sheriff’s Office that
Wilson had been shot. When the responding officers questioned Wilson about his
gunshot wound, Wilson told them he had been shot while standing in his yard after
4 he got home from work. He did so because he did not want Vernita to know about
his sexual relationship with Wiley. After inspecting Wilson’s SUV and the outside
of his home where he allegedly had been shot, the officers told Wilson, who was still
in the hospital, that his story was not “adding up.” At that point, Wilson admitted
lying to the officers and Vernita about the shooting. He identified Roman as the
shooter. Wilson also identified Roman in court as the person who demanded money
from him and then shot him in the shoulder.
On cross-examination, Wilson admitted he had paid Wiley for sex on four or
five prior occasions after her seventeenth birthday. Wilson denied ever going inside
Wiley’s apartment and insisted that he and Wiley only had sex in his SUV.
B. Deputy Andrew Lopez and Deputy Ryan Ohl
On October 16, 2020, Deputy Andrew Lopez, Deputy Josh Solis, and Deputy
Ryan Ohl with the Colorado County Sheriff’s Office responded to a call at the
Columbus Community Hospital regarding a gunshot victim. Deputy Lopez, who
met with Wilson and Vernita at the hospital, testified that Wilson had a gunshot
wound on the top left of his shoulder that was bleeding and appeared “fresh.” Wilson
told Deputy Lopez that someone had shot him while he was standing outside his
home, but he did not know the shooter’s identity.
Deputy Solis and Deputy Ohl went to Wilson’s home to inspect the alleged
crime scene while Deputy Lopez talked to Wilson and Vernita at the hospital. Other
5 than a small amount of blood on a rock in the driveway, Deputy Solis and Deputy
Ohl did not find any shell casings or other evidence indicating that the shooting had
occurred at that location, as Wilson claimed. After they reported their findings to
Deputy Lopez, Deputy Lopez briefly inspected Wilson’s SUV, which was parked at
the hospital. Deputy Lopez testified there were three bullet indentations in the rear
driver’s side door, and a “profuse” amount of blood on the SUV’s driver’s seat,
dashboard, front passenger seat, back seat, and in the cargo area. Based on his
observations, Deputy Lopez concluded the shooting had occurred inside Wilson’s
SUV, not outside Wilson’s home as Wilson claimed.
Deputy Ohl corroborated Deputy Lopez’s testimony regarding their
investigation of Wilson’s home and SUV. Deputy Ohl testified that he and Deputy
Solis did not find any evidence that a shooting had occurred outside Wilson’s home.
After inspecting the outside of Wilson’s vehicle, Deputy Ohl concluded the shooting
had occurred inside the SUV.
C. Detective William Moulder
The Columbus Police Department took the investigation over from the
Sheriff’s Office after Wilson admitted that the shooting had occurred inside
Wilson’s SUV, while parked outside Wiley’s apartment building in Columbus,
Texas. Detective William Moulder with the Columbus Police Department began his
investigation by going to the Colorado County Sheriff’s Office to gather information
6 and inspect Wilson’s SUV. According to Detective Moulder, 17-year-old Wiley
was inside Wilson’s SUV when Roman shot Wilson. Detective Moulder knew
Roman and identified Roman in the courtroom. Detective Moulder testified that he
saw blood in the SUV’s interior and an indentation in the rear driver’s side door
panel indicating that a bullet had struck the inside of the door. Detective Moulder
also inspected the parking lot of Wiley’s apartment building, but he did not find any
evidence of a crime occurring at the scene.
Detective Moulder then spoke to Wilson and Vernita at the hospital and
photographed Wilson’s injuries. Wilson told Moulder that Roman had never been
inside the SUV before the shooting, and he gave Detective Moulder consent to
search his SUV and cell phone.2 Detective Moulder found evidence that three bullets
had been fired inside Wilson’s SUV, and he collected several items from the SUV’s
cargo area including eyeglasses, a stun baton, and a black baseball hat.
The stun baton, eyeglasses, and black baseball cap were sent to the Texas
Department of Public Safety Crime Lab for processing, along with blood samples
Moulder had collected from the SUV’s interior, DNA samples from Wilson and
Vernita, and buccal swabs taken from Roman. Detective Moulder also dusted the
2 Wilson had deleted his text messages with Wiley, and Moulder was not able to retrieve the information from Wilson’s cell phone. Although Vernita gave Detective Moulder the shell casing Wilson had thrown away, Detective Moulder did not submit the shell casing for forensic analysis because no firearm was recovered during the investigation and the shell casing itself had been tainted.
7 rear passenger side door for fingerprints, but no fingerprints were recovered from
Wilson’s SUV or any of the evidence Moulder collected from the vehicle.
D. Investigator Keith Webb
Keith Webb, an investigator with the Colorado County Attorney’s Office,
prepared a search warrant for Roman’s DNA. The search warrant and Webb’s
probable cause affidavit were admitted into evidence without objection as State
Exhibit 63. In his affidavit, Webb stated:
Columbus Police Detective [William] Moulder took a statement from Craig Wilson who told him that a 17-year-old female named Bre’Andrea Wiley contacted him asking him for some money so she could get her hair fixed. She told Wilson to meet her at the Preston Apartments. When Wilson arrived Wiley got into the front passenger seat and then she reached into the back seat and unlocked the rear passenger door. Then 35-year-old John Alberto Roman opened the rear passenger door and got inside.
Wilson said that he recognized Roman and has known him for several years. Roman immediately yelled at Wilson, “Where is the money?” Roman was holding a long black flashlight taser, which he used to shock Wilson with. Wilson began fighting with Roman and ended up in the backseat where he was able to take the taser device away from him. Then Roman pulled out a semi-auto pistol.
Wilson dropped the taser then he began trying to take the pistol away from Roman. During the struggle Roman discharged the pistol three (3) times with one of the bullets hitting him in the shoulder. After the shooting Roman exited the vehicle and ran away.
...
A search of the interior of the vehicle located several fired bullet fragments, a black baseball cap and prescription eyeglasses believed to belong to Roman. Detective Moulder also located and recovered a
8 “Streetwise Police Force” brand taser that is marketed as being a flashlight, a baton striking weapon and a high voltage stun weapon.
In his probable cause affidavit, Webb also stated that Wiley had given a sworn
statement. Webb stated:
Columbus Police Captain Wendy Alley took a sworn statement from Bre’Andrea Wiley. Wiley told Alley that she has been dating Roman for a while and he had become angry when he learned that Wilson had been communicating with her. Roman had Wiley contact Wilson to arrange a meeting because he was going to make Wilson “come to an understanding about stopping him from calling her”. Wiley told Alley that she knew he had a pistol but didn’t know anything about him having a taser. Roman had told Wiley to bring a towel when she went to Wilson’s vehicle so he could wrap up his pistol with it when he was through. Roman later told Wiley that he would break her jaw and leave her paralyzed if she told the police what he had done.
E. Julia Yip
Julia Yip, a forensic scientist with the DPS Crime Lab, compared known DNA
samples from Roman, Wilson, and Vernita with the two samples of DNA located on
the black baseball cap found in Wilson’s SUV. Yip testified the hat contained a
mixture of DNA from at least three different individuals, at least one of whom
was male. According to Yip, the probability that the DNA profile on the hat:
came from Craig Wilson, John Roman, and one unrelated individual, is 66.9 quattuordecillion times greater than the probability of this profile, if the DNA came from three unrelated, unknown individuals. This likelihood ratio indicates support for the proposition that Craig Wilson and John Roman are possible contributors to the profile.
Yip further testified:
9 the probability of the profile if the DNA came from John Roman and two unknown individuals is 698 septillion times greater than the probability of this profile if the DNA came from three unrelated, unknown individuals; and for Craig Wilson, the probability of this profile, if the DNA came from Craig Wilson and two unknown individuals is 343 quadrillion times greater than the probability of this profile if the DNA came from three unrelated, unknown individuals. So 698 septillion is a bigger number than 343 quadrillion.
She further testified:
So the probability of this profile from the portion of the swabbings from the black hat, if the DNA came from John Roman and two unknown individuals, is 698 septillion times greater than the probability of this profile, if the DNA came from three unrelated, unknown individuals; and for the comparisons to Craig Wilson, the probability of the profile, if the DNA came from Craig Wilson and two unknown individuals, is 343 quadrillion times greater than the probability of this profile if the DNA came from three unrelated, unknown individuals. And 698 septillion is a larger number than 343 quadrillion.
In other words, Roman and Wilson were possible contributors to the DNA on the
black hat found in Wilson’s SUV and the probability that the DNA came from
Roman and two unknown individuals was greater than the probability that it came
from Wilson and two unknown persons.
F. Captain Wendy Alley
Captain Wendy Alley with the Columbus Police Department showed a photo
array to Wilson, and Wilson identified Roman as the person who shot him in the
shoulder. Wilson told Captain Alley that he was “100 percent sure.”
At that point in Captain Alley’s testimony, the State requested a hearing to
determine whether the doctrine of forfeiture by wrongdoing barred Roman from
10 objecting to the admission of Wiley’s out-of-court statements based on the Sixth
Amendment’s Confrontation Clause. During the hearing, the State presented
testimony from Captain Alley and Wiley’s mother Laquida Sewell.3 After hearing
the testimony and arguments from Roman and the State, the trial court found by a
preponderance of the evidence that the forfeiture by wrongdoing doctrine, codified
in Article 38.49 of the Texas Code of Criminal Procedure, applied and Roman was
thus prohibited from asserting his constitutional right to confront Wiley.
Wiley’s written statement, given to Captain Alley on October 19, 2020, was
redacted. The redacted statement was admitted as State Exhibit 66 and submitted to
the jury. When the State offered the redacted version of Wiley’s written statement
into evidence, Roman objected to the admission of the statement on the grounds that
“[i]t is hearsay,” its admission “violates the Sixth Amendment confrontation clause,”
and it “unfairly prejudiced [Roman] by the surprise of the statement coming in with
the witness not being available.” The trial court admitted the redacted statement
over Roman’s objection.
When Captain Alley’s testimony resumed, she read Wiley’s redacted written
statement to the jury.
I know Craig Wilson through mutual friends for around three years. I know John Roman by babysitting his kids. [Roman] had a Halloween party in 2018, and Craig started flirting with me and asked me to meet 3 We discuss Captain Alley’s and Sewell’s hearing testimony below in the “Texas Code of Criminal Procedure Article 38.49 Hearing” section of this opinion.
11 up with him. We met at my apartment at my parking lot, and he drove a red Mustang. We had sex in the back seat. He gave me $30 and told me not to tell anybody because I was too young. Craig and I had met up around five to six times a week. I would either perform oral sex or sex, and he would give me money. He would always wear a condom if we had sex, and we would always have sex in my apartment parking lot. Craig would sit in the driver’s seat to put on the condom, then get into the back seat.
Around a year ago, when I was still 16 years old, I started having sexual relationship with [Roman]. I call him Rico. [Roman] knew I was 16, but he didn’t care. [Roman] and I would have sex at his house by the junior high. When [Roman] and I had sex, he would never wear a condom.
In April of this year, Craig picked me up from work at Burger King. It was around 11:00 p.m. Craig took me to my apartment. Usually when Craig gives me a ride home from work I give him a blow job. On this night I wasn’t feeling it, so I just got out and walked into my apartment. I did not lock the door behind me. My mom and sister were not home. I walked into my mom’s bedroom. I was sitting in my mom’s bed, and I still had on my work clothes. Craig came inside without permission. I asked him what he was doing, and I smelled the beer on his breath. Craig started unbuttoning my high-waisted jeans. Craig told me “Come on, baby.” Craig got my pants and panties off and forced his penis into my vagina. Craig went like four strokes. I told him to stop. He did. Craig put his shorts back on. I stayed on the bed. Craig walked outside, and I hurried up and locked it behind him. Craig raped me.
I didn’t tell anyone, but a week later I told [Roman]. [Roman] seemed surprised and didn’t really say anything. He took me home. [Roman] and I had not talked about the rape since then except for the night he shot Craig. On that day [Roman] told me to text Craig. He told me to text him that I would have sex with him, but because I was on my period, I would give him head, then have sex with him when I was off my period for $140, so that I could get my hair done. [Roman] told me he was going to bust Craig in the ass. I knew [Roman] had the gun, but not the taser. I never thought [Roman] would shoot Craig. [Roman] said he was going to make Craig come to an understanding about stopping him from reaching out to me or calling me.
12 The plan was that I would get in the front passenger seat and Craig would be in the driver’s seat like he usually is to put a condom on, but Craig was already in the back seat when I sat down in the front passenger seat. When I walked out, I had a blue towel with me in my hands. [Roman] had told me to take it with me so he could wrap the gun with it. So when [Roman] got in the back passenger seat Craig was in the back seat with him. They started wrestling in the back seat, but it was dark so I could not see. I heard like three gunshots. [Roman] yelled at me to open his door. He was locked inside, so I did. Then I ran by a little red car in the parking lot. [Roman] got out, and I saw the gun in his hands. Craig drove off.
[Roman] told me that if the cops come, to tell them that Craig had raped me. [Roman] left. He later picked me up around 2:00 a.m. We went to his house, and he dropped me back off around 5:00 a.m. After that I was trying to avoid [Roman], but on Sunday, the 25th, [Roman] picked me up from my apartment and took me to one of his houses right by the junior high and was telling me that he was going to move me in with him. Then he started in asking me about all of these dudes I was with, but I wasn’t.
[Roman] slapped me twice in my face, and it hurt me. I was shaking. I was so scared. This wasn’t the first time [Roman] has hit me. [Roman] was telling me that he was going to break my jaw and paralyze me if I told anybody about what we were talking about. He kept asking me to name all of the guys I’ve slept with. I kicked off my shoes and ran to my friend Shatyra Scott’s house to get away from him. I told Shatyra that I was running from [Roman]. [Roman] had my cell phone in his pocket, so now he has it. [Roman] calls my sister’s phone and says I need to get myself together and says he’s been watching me. Now I’m scared to even go outside, and I quit my job, too. [Roman] said if I tell the police about the shooting, that he has bail money. I don’t know where the gun is.
G. Closing Arguments
In its closing argument, the State argued that Wilson’s testimony provided
direct evidence that Roman had committed aggravated robbery when he demanded
13 money from Wilson and shot him in the shoulder. The State argued that Wilson’s
testimony was corroborated by Wiley’s out-of-court statement, Wilson’s gunshot
wound, and the physical evidence collected from inside the SUV, including the DNA
found on the black baseball cap. According to the State:
Three bullet holes corroborate[] what Craig Wilson testified, and it corroborates what [Wiley] said in her statement. There is a taser in the vehicle. That corroborates, and there was a bullet casing found in the vehicle. It corroborates Craig Wilson’s testimony.
The State argued there was also circumstantial evidence of Roman’s guilt, stating:
Detective Moulder’s testimony about what the physical evidence showed. He processed it, and then based on what he saw, he came to a conclusion based on his training and his experience that there was a struggle that occurred in that vehicle, exactly like Craig Wilson said. Someone was shot. There was no evidence outside the vehicle or in the parking lot. That’s because everything happened inside the car. And there is evidence from the witness stand that there were shots heard being fired a little after midnight, if y’all will remember that, near the Preston Street Apartments. The probabilities that that DNA off of that cap from John Roman and two unknown individuals is that much greater than that it came from Craig Wilson and two unknown individuals. . . And it’s a reasonable conclusion or a reasonable deduction from that evidence that the cap was worn by John Roman. It corroborates what Craig Wilson testified to, that John Roman left that hat in his vehicle on October the 16th, 2020.
The State, who acknowledged Wilson had lied to the police and his wife about the
shooting and his sexual relationship with Wiley, argued:
We’re not saying that Craig Wilson is a good person. This case is the State versus John Roman. It is not about Craig Wilson versus John Roman. We don’t pick our victims or the crimes that are committed in Colorado County. Justice is blind.
14 As the State had anticipated, Roman’s closing argument focused extensively
on Wilson’s character flaws, criminal conduct, and the credibility of his testimony.
Notably, one piece of evidence Roman relied on to make his case to the jury was
Wiley’s out-of-court statement, which provided the only evidence that Wilson had
sexually assaulted Wiley and paid her for sex when she was sixteen years old.
Relying on Wiley’s out-of-court statement, Roman argued that Wilson had not only
lied to the police and his wife, he also lied to the jury about his relationship with
Wiley:
Here’s a man who came into court, who lied under oath to your faces. He said “I did not begin to sleep with this girl when she was 16. I had never been to her home, and I did not rape her.” We now know he did. And in a remarkable question mark we have a man who is engaging in prostitution or sex trafficking, a man who lied to the police under oath, a man who raped a young girl, and also engaged in sex with a minor. All crimes. And for some strange reason, this man has not been criminally charged. This man is still in the community, doing whatever he does to whomever apparently he wants, that he can find. He wasn’t charged with prostitution. He wasn’t charged with lying under oath to the police. It’s amazing.
Roman also argued that the only evidence a robbery had occurred was Wilson’s
testimony that Roman had tased him and demanded money. According to Roman,
Wilson’s robbery claim was part of the “barrage of lies” he had concocted in a
desperate attempt to cover up his own wrongdoing, as demonstrated by the fact
Wiley never mentioned a robbery in her statement. Roman argued:
The person who has absolutely no credibility at all is Craig White -- Wilson. Do you realize that the only person, the only person, who said
15 that this was about a robbery, that this was someone demanding money, the only person who said that is Craig Wilson. When you look at [Wiley’s] statement in its entirety, there is not one mention of a robbery or a demand for money or property, so why did that story come up about a robbery?
Roman’s counsel then asked the jury to return a verdict of not guilty on all counts
because:
It’s the right thing to do. As the conscience of the community, if you do anything else other than that, you have endorsed, encouraged, supported Craig Wilson, the rapist, the liar, the person who engages in prostitution.
Roman’s counsel further argued, “The greatest miscarriage of justice in this case
would be to lend by a verdict your encouragement or support, your applause, your
consent, to a person like Craig Wilson. Let’s not do that. We can’t do that.”
In its rebuttal, the State argued that neither Roman nor Wilson were innocent
parties and although Wilson had not been prosecuted for his alleged crimes, it was
possible he would be charged in the future. The State argued that the only issue
before the jury was “whether or not John Roman shot [Wilson] during the course of
a robbery.” The State also argued that Wiley’s out-of-court statement corroborated
Wilson’s testimony that Roman had attempted to rob him because her claim that
Roman instructed her to tell Wilson to bring money with him supported an inference
that a robbery had occurred.
The jury found Roman guilty of aggravated robbery and unlawful possession
of firearm by a felon. At the conclusion of the punishment hearing, the jury found
16 the allegation that Roman had previously been convicted of the felony offense of
aggravated robbery to be true.4 It then assessed Roman’s punishment for the
aggravated robbery offense at 99 years’ incarceration and for the unlawful
possession of firearm by a felon offense at 10 years’ incarceration. The trial court
signed two judgments consistent with the jury’s verdict, found that a deadly weapon
had been used during the commission of the aggravated robbery, and ordered both
sentences to run concurrently.
This appeal followed.
Forfeiture by Wrongdoing
In his first issue, Roman argues the trial court abused its discretion in holding
the doctrine of forfeiture by wrongdoing barred him from asserting his rights under
the Sixth Amendment’s Confrontation Clause with respect to the admission of
Wiley’s out-of-court statements into evidence. The State responds that Roman
waived this issue due to inadequate briefing, and even if not waived, his issue fails
because there is sufficient evidence supporting the trial court’s holding that the
doctrine of forfeiture by wrongdoing barred Roman from objecting to the admission
of Wiley’s out-of-court statements based on the Confrontation Clause and that the
statements were admissible. The State further contends that even if the trial court
abused its discretion, the error was harmless.
4 Roman pleaded “true” to the enhancement paragraph.
17 A. Standard of Review and Applicable Law
The Confrontation Clause of the Sixth Amendment guarantees an accused the
right to confront the witnesses against him. Paredes v. State, 462 S.W.3d 510, 514
(Tex. Crim. App. 2015). Under the Confrontation Clause, “testimonial”
statements—statements that were made under circumstances that would lead an
objective witness to reasonably believe they would be available for use at a later
trial—are inadmissible at trial unless the witness who made them either takes the
stand to be cross-examined or is unavailable and the defendant had a prior
opportunity to cross-examine the witness. Id.
One exception to the Confrontation Clause is the doctrine of forfeiture by
wrongdoing. Under that doctrine, a defendant is barred from objecting to a witness’
out-of-court statements based on the Confrontation Clause when he wrongfully
procures the witness’ unavailability at trial.5 Colone v. State, 573 S.W.3d 249, 264–
65 (Tex. Crim. App. 2019). This exception applies only when the defendant
“engaged in conduct designed to prevent the witness from testifying.” Giles v.
California, 554 U.S. 353, 359, 365 (2008) (explaining that absence of forfeiture rule
for such conduct “would create an intolerable incentive for defendants to bribe,
5 The doctrine of forfeiture by wrongdoing also bars a defendant from objecting to a witness’ out-of-court statements based on the hearsay rule. See Colone v. State, 573 S.W.3d 249, 265 (Tex. Crim. App. 2019) (stating doctrine of forfeiture by wrongdoing “trumps the hearsay rule” and defendant’s conduct “logically relinquishes any right conferred by the hearsay rule”).
18 intimidate, or even kill witnesses against them”). The doctrine of forfeiture by
wrongdoing is based on the principle that tampering with a witness “should . . . estop
the tamperer from making any objection based on the results of his own chicanery.”
Colone, 573 S.W.3d at 264 (quotation omitted); see generally Davis v. Washington,
547 U.S. 813, 833 (2006) (stating doctrine of forfeiture by wrongdoing extinguishes
confrontation claims on equitable grounds and noting that “when defendants seek to
undermine the judicial process by procuring or coercing silence from witnesses and
victims, the Sixth Amendment does not require courts to acquiesce. While
defendants have no duty to assist the State in proving their guilt, they do have the
duty to refrain from acting in ways that destroy the integrity of the criminal-trial
system.”).
Texas Code of Criminal Procedure Article 38.49 codifies the doctrine of
forfeiture by wrongdoing. It states that
(a) A party to a criminal case who wrongfully procures the unavailability of a witness or prospective witness:
(1) may not benefit from the wrongdoing by depriving the trier of fact of relevant evidence and testimony; and
(2) forfeits the party’s right to object to the admissibility of evidence or statements based on the unavailability of the witness as provided by this article through forfeiture by wrongdoing.
(b) Evidence 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 or prospective witness are
19 admissible and may be used by the offering party to make a showing of forfeiture by wrongdoing under this article, subject to Subsection (c).
(c) In determining the admissibility of the evidence or statements described by Subsection (b), the court shall determine, out of the presence of the jury, whether forfeiture by wrongdoing occurred by a preponderance of the evidence. If practicable, the court shall make the determination under this subsection before trial using the procedures under Article 28.01 of this code6 and Rule 104, Texas Rules of Evidence.7
(d) The party offering the evidence or statements described by Subsection (b) is not required to show that:
(1) the actor’s sole intent was to wrongfully cause the witness’s or prospective witness’s unavailability;
(2) the actions of the actor constituted a criminal offense; or
(3) any statements offered are reliable.
(e) A conviction for an offense under Section 36.05 or 36.06(a), Penal Code, creates a presumption of forfeiture by wrongdoing under this article.8
(f) Rule 403, Texas Rules of Evidence, applies to this article.9 This article does not permit the presentation of character evidence that
6 Article 28.01 addresses what matters may be heard during a pretrial hearing. TEX. CODE CRIM. PROC. art. 28.01. 7 Texas Rule of Evidence 104 addresses preliminary questions the trial court decides, such as whether a witness is qualified, whether a privilege exists, or whether evidence is admissible. TEX. R. EVID. 104(a). 8 TEX. PENAL CODE § 36.05(a) (witness tampering); id. § 36.06(a) (obstruction or retaliation). 9 Texas Rule of Evidence 403 states that a trial court may exclude evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. TEX. R. EVID. 403.
20 would otherwise be inadmissible under the Texas Rules of Evidence or other applicable law.
TEX. CODE CRIM. PROC. art. 38.49.
Incidents of domestic violence perpetrated by a defendant against the witness
whose out-of-court statements the State seeks to admit “may sometimes be relevant
to determin[e] whether [the defendant’s] particular conduct was designed to prevent
a witness from testifying.” Brown v. State, 618 S.W.3d 352, 356 (Tex. Crim. App.
2021) (citing Giles, 554 U.S. at 377); see also 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., not designated for publication) (“[T]he domestic-violence context is particularly
suitable for the application of the forfeiture by wrongdoing doctrine.”). But evidence
the defendant committed domestic violence against the witness in the past, standing
alone, does not show that a defendant caused the victim to be absent from trial.
Brown, 618 S.W.3d at 358 (holding “there needs to be more than simply the past
commission of family-violence assaults to show causation,” such as commission of
“offense that necessarily causes a victim’s absence,” or evidence defendant
threatened or engaged in conduct otherwise designed to control witness).
Because the doctrine of forfeiture by wrongdoing concerns the admission of
otherwise inadmissible evidence, we review a trial court’s admission of evidence
under the doctrine for abuse of discretion. See Shepherd v. State, 489 S.W.3d 559,
572 (Tex. App.—Texarkana 2016, pet. ref’d). We will uphold the trial court’s ruling
21 if there is some evidence to support the trial court’s decision and it is correct under
any theory of law applicable to the case. See Armendariz v. State, 123 S.W.3d 401,
404 (Tex. Crim. App. 2003) (stating appellate courts must uphold evidentiary rulings
if they are correct under any theory of law supported by record regardless of what
reason trial court gives); Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App.
2002) (stating trial court does not abuse its discretion by admitting evidence if there
is some evidence to support trial court’s decision). Direct and circumstantial
evidence may be used to establish the defendant’s wrongful conduct caused a
witness’ unavailability. See Brown, 618 S.W.3d at 357 (“[C]ourts have recognized
that procurement or causation need not be proven directly, but may be established
by inference.”). If the trial court does not issue findings of fact, we review the
evidence in the light most favorable to the trial court’s ruling and assume the court
made findings that are supported by the evidence. Shepherd, 489 S.W.3d at 572–
73; see also Schindler v. State, No. 02-17-00241-CR, 2018 WL 4924946, at *6 (Tex.
App.—Fort Worth Oct. 11, 2018, pet. ref’d) (mem. op., not designated for
publication) (stating that during Article 38.49 hearing, trial court is sole trier of fact
and judge of credibility of witnesses and weight given their testimony). “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,
22 2022, pet. ref’d) (mem. op., not designated for publication) (citing Brown, 618
S.W.3d at 355).
If the trial court abuses its discretion by holding the forfeiture by wrongdoing
doctrine applies and admitting a witness’ out-of-court statement over a defendant’s
Confrontation Clause objection, the error is not reversible unless it was harmful. A
Confrontation Clause violation is constitutional error that requires reversal unless
we conclude beyond a reasonable doubt that the error was harmless. See Love v.
State, 543 S.W.3d 835, 846 (Tex. Crim. App. 2016); see TEX. R. APP. P. 44.2(a)
(setting forth standard for constitutional error).
When applying the harmless error test for constitutional errors under Rule
44.2(a), courts must “ask whether there is a ‘reasonable possibility’ that the error
might have contributed to the conviction.” Love, 543 S.W.3d at 846 (citing Mosley
v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)). The analysis should not
focus on the propriety of the outcome. Id.; see also Scott v. State, 227 S.W.3d 670,
690 (Tex. Crim. App. 2007) (“[T]he question for the reviewing court is not whether
the jury verdict was supported by the [other] evidence.”). Rather, “the question is
the likelihood that the constitutional error was actually a contributing factor in the
jury’s deliberations in arriving at that verdict—whether, in other words, the error
adversely affected ‘the integrity of the process leading to the conviction.’” Scott,
23 227 S.W.3d at 690 (quoting Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App.
1989)).
When deciding whether an error of constitutional dimension contributed to
the conviction, courts evaluate the entire record in a neutral manner and consider
any and every circumstance apparent in the record that logically informs the
harmless error determination. Love, 543 S.W.3d at 846. In doing so, courts may
consider non-exclusive factors, such as the evidence’s importance to the State’s case,
whether the evidence was cumulative of other admissible evidence, the presence or
absence of evidence corroborating or contradicting the out-of-court statement, and
the overall strength of the State’s case. Davis v. State, 203 S.W.3d 845, 850 (Tex.
Crim. App. 2006).
B. Texas Code of Criminal Procedure Article 38.49 Hearing
During Captain Alley’s testimony, the State requested an Article 38.49
hearing to determine whether Roman was barred from objecting to the admission of
Wiley’s out-of-court statements based on the doctrine of forfeiture by wrongdoing.
As required by Article 38.49, the trial court conducted a hearing outside the presence
of the jury. TEX. CODE CRIM. PROC. art. 38.49(c).10 During the hearing, the State
presented testimony from Captain Alley and Wiley’s mother Laquida Sewell.
10 Article 38.49(c) provides that “[i]n determining the admissibility of the evidence or statements described by Subsection (b), the court shall determine, out of the
24 1. Captain Wendy Alley
Captain Alley interviewed Wiley on October 29, 2020, 13 days after the
shooting. During the interview, Wiley told Captain Alley:
John Roman had assaulted her by slapping her in the face, which caused her pain, as he was asking her about her sexual partners that she had had in the past. She told me that John Roman told her that he would break her jaw and paralyze her if he—if she told anyone about the conversations that they had and went on to say that if she told anyone about the shooting that he had bail money.
When asked if Wiley appeared to be frightened during the interview, Captain Alley
testified, “Absolutely.” Captain Alley stated that although a subpoena had been
issued for Wiley, Wiley had not been served with the subpoena because the
Columbus Police Department had not been able to locate her. The record reflects
that subpoenas were issued for Wiley at three different addresses on February 17,
2022. The State asked the trial court to take judicial notice of the “absence of returns
associated with subpoenas.”
Captain Alley testified that Wiley is listed as a missing person on the National
Missing and Unidentified Persons System (NamUs).11 A printout of Wiley’s NamUs
presence of the jury, whether forfeiture by wrongdoing occurred by a preponderance of the evidence. If practicable, the court shall make the determination under this subsection before trial using the procedures under Article 28.01 of this code and Rule 104, Texas Rules of Evidence.” TEX. CODE CRIM. PROC. art. 38.49(c). 11 NamUs “is a national centralized repository and resource center for missing, unidentified, and unclaimed person cases across the United States.” Home | NamUs (ojp.gov).
25 information was admitted into evidence for purposes of the hearing as State Exhibit
67. According to State Exhibit 67, Wiley, who was added to NamUs on March 15,
2022, had not been in contact with anyone since January 12, 2022, and “foul play is
suspected in her disappearance.” NamUs reflects that after a report was filed with
the Houston Police Department on January 21, 2022, HPD opened an investigation
into Wiley’s disappearance under HPD, Case Number 92993-22. According to
Captain Alley, HPD was investigating Wiley’s disappearance as a possible
homicide.
Captain Alley also testified that Roman had a pending charge in Harris
County, Texas for the felony offense of possession of a controlled substance. The
search warrant for Roman’s vehicle and the probable cause affidavit submitted in
support of the search warrant in that drug possession case were admitted into
evidence for purposes of the hearing as State Exhibit 68. The probable cause
affidavit states that when HPD’s Narcotics Tactical Team arrested Roman on
February 2, 2022, they “seized [Roman’s] vehicle, [which they believed] to have
been involved in a homicide (case # 92993-22)” and Roman is “believed to be the
only person that drives that vehicle.” The HPD homicide investigation number listed
on the probable cause affidavit is the same as the HPD case number included in
Wiley’s NamUs printout.
26 On cross-examination, Captain Alley testified that the last time she spoke to
Wiley was when Wiley was served with a subpoena in 2021 for a prior trial date,
and she did not know Wiley’s current whereabouts. When asked if she knew
whether Wiley was dead or alive, Captain Alley testified, “All I know is HPD is
conducting a homicide investigation regarding her.” Captain Alley testified that she
learned of HPD’s homicide investigation in March 2022, approximately six months
before trial.
2. Laquida Sewell
Laquida Sewell, Wiley’s mother, also testified for the State during the
hearing. Sewell testified she learned that Wiley and 34-year-old Roman had been
dating on November 29, 2019, Wiley’s 17th birthday.12 Sewell was concerned about
the relationship because Roman is 17 years older than Wiley, who was only 16 years
old when the relationship began. According to Sewell, Wiley moved out of Sewell’s
home in March 2021, and Sewell never heard from her again.
Sewell testified she had a good relationship with Wiley before Wiley moved
out. When asked how the move occurred, Sewell testified, “One day I was at work
and never heard from her.” Sewell testified that she “[c]ouldn’t get in contact” with
Wiley and she “didn’t know where she was.” According to Sewell, Wiley’s
Facebook page had been taken down and no one had heard from her. When asked
12 Wiley’s birthdate is November 29, 2002.
27 if she was “aware of any incidents of violence perpetrated by Mr. Roman against”
Wiley, Sewell testified that Wiley told her that Roman slapped her once. According
to Sewell, Wiley, who would have been 19 years old at the time of trial, was not the
type of person to cut ties with her family. Sewell also testified that Wiley did not
have any savings, a car, or the type of employment that would support a car payment
when she lived with Sewell.
On cross-examination, Sewell testified that Wiley never told her of any
incidents of physical violence other than the one time Roman slapped her.
According to Sewell, Wiley “left with” Roman when she moved out of Sewell’s
home and she “didn’t see [Wiley] until maybe a month later when [Wiley] came and
got the rest of her stuff with two guys.” When asked if she had any evidence that
Roman was involved in Wiley’s disappearance, Sewell testified, “Well, she left with
him.” Sewell had not been in contact with Wiley for over a year and a half and she
“did not know the kinds of things that [Wiley] was involved in and who her
associates were” because Wiley was “being kind of secretive.”
On redirect examination, Sewell testified that Wiley’s secretive behavior
began after she started dating Roman. Sewell testified that the last time she saw
Wiley was Mother’s Day on May 9, 2021, and if Wiley had been in contact with any
other family members, they would have told Sewell.
28 After hearing argument from Roman and the State, the trial court found by a
preponderance of the evidence that the wrongdoing by forfeiture doctrine applied to
Wiley’s out-of-court statements. The trial court stated:
Physical violence in the past, domestic violence in the past by itself is not by itself grounds for adopting 38.49, but there’s more to this case than just the domestic violence. There was a history of domestic violence, but with this case there was an implied threat and I think a direct threat as well to commit serious bodily injury if Ms. Wiley talked about this, and I note that the timing of Ms. Wiley’s statement, she gave her statement on October 29th, less than two weeks after the alleged shooting, and the threat that he had bail money to get out was clearly an indication that—to me that she was being threatened and felt threatened; therefore, I find that under the circumstances that there is a preponderance of the evidence, Article 38.49 will apply in this case.
When the State offered into evidence a redacted version of the written
statement Wiley gave to Captain Alley on October 19, 2020, Roman objected to the
admission of the statement on the grounds that “[i]t is hearsay,” its admission
“violates the Sixth Amendment confrontation clause,” and it “unfairly prejudiced
[Roman] by the surprise of the statement coming in with the witness not being
available.” The trial court overruled the objection and admitted Wiley’s statement
into evidence as State Exhibit 66.
C. Analysis
Roman argues the trial court abused its discretion in holding the doctrine of
forfeiture by wrongdoing barred him from asserting his rights under the Sixth
Amendment’s Confrontation Clause and in admitting Wiley’s out-of-court
29 statements into evidence. Among other things, the State argues Roman waived this
issue on appeal due to inadequate briefing. Even assuming Roman properly briefed
his first issue, he still does not prevail on the merits.
Roman argues the trial court abused its discretion because the State did not
establish by a preponderance of the evidence that (1) Roman wrongfully procured
Wiley’s unavailability to testify at trial, (2) Wiley was unavailable because of
Roman’s wrongdoing, and (3) Roman intended to prevent Wiley from testifying.
The State responds the trial court did not abuse its discretion because there is ample
evidence supporting the trial court’s finding that the doctrine of wrongdoing by
forfeiture barred Roman from objecting to the admission of Wiley’s out-of-court
statement based on the Confrontation Clause.
The record reflects that Wiley gave a sworn statement to Captain Alley on
October 29, 2020, less than two weeks after Wilson was shot. In her sworn
statement, Wiley told Captain Alley that Roman took her to his home on October
25, 2020, and told her that “he was going to move [her] in with him.” Roman
interrogated Wiley about her past sexual partners and slapped her “twice in my face,
and it hurt me.” According to Wiley,
I was shaking. I was so scared. This wasn’t the first time [Roman] has hit me. [Roman] was telling me that he was going to break my jaw and paralyze me if I told anybody about what we were talking about.
30 Wiley told Captain Alley that she ran to a friend’s home to get away from Roman.
Roman kept Wiley’s cell phone and, over the next four days, used the phone to call
Wiley’s sister and told her that Wiley “need[ed] to get [her]self together” and he had
“been watching” Wiley. Wiley, who did not know where Roman’s gun was located,
was “scared to even go outside” and she quit her job. Wiley told Captain Alley that
Roman “said if I tell the police about the shooting, that he has bail money.” Captain
Alley testified that Wiley appeared to be scared when she gave her statement.
In March 2021, five months after giving her sworn statement to Captain Alley,
Wiley moved out of Sewell’s home and she left with Roman. Wiley, who is not the
type of person to lose contact with her family, has not spoken to Sewell since
Mother’s Day on May 9, 2021.
Roman’s trial, originally scheduled for August 9, 2021, was reset for October
25, 2021. Wiley was served with a subpoena issued on September 22, 2021.13 On
October 15, 2021, ten days before Roman’s trial, Wiley posted on her social media
account that she and Roman were married.14 Five days later, Roman filed a second
motion for continuance and the trial was reset for April 25, 2022. Wiley disappeared
in January 2022, before the State could serve her with a subpoena for the new trial
13 The subpoena is not included in the appellate record and the record does not reflect the date Wiley was served with the subpoena. 14 See Brown v. State, 618 S.W.3d 352, 356 (Tex. Crim. App. 2021) (observing other courts have “held that marrying the witness can constitute wrongdoing, if done so that the witness can invoke a spousal privilege against testifying”).
31 setting. HPD is investigating Wiley’s disappearance as a possible homicide and
Roman is a suspect in the case.
The record thus contains evidence that Roman, who previously assaulted
Wiley, slapped Wiley’s face nine days after Wilson was shot in the shoulder and
threatened to break Wiley’s jaw and paralyze her if she told anyone about the
shooting. Roman also indirectly threatened to physically harm Wiley when he told
Wiley’s sister that he was watching Wiley, and that if she talked to the police about
the shooting, “he has bail money.”
Viewed in the light most favorable to the trial court’s ruling, this evidence
supports an inferential connection between Roman’s direct and implied threats of
violence against Wiley should she talk to the police about the robbery and shooting,
and Wiley’s eventual unavailability at Roman’s trial. See Brown, 618 S.W.3d at 358
(stating history of family violence directed at witness in combination with evidence
defendant “issued any threats or engaged in conduct otherwise designed to control”
witness is evidence defendant intended for threats to cause witness to be absent from
trial and resulted in witness’ unavailability for trial); see also Byrd, 2022 WL
2719060, at *6 (stating when assessing evidence regarding acts alleged to have
procured witness’ unavailability, we draw all reasonable inferences in favor of trial
court’s finding) (citing Brown, 618 S.W.3d at 357). There is thus some evidence
supporting the trial court’s finding that Roman engaged in wrongdoing that was
32 intended to, and did, procure Wiley’s unavailability for trial by directly and
indirectly threatening her with physical harm if she talked to the police about the
robbery and shooting. See Brown, 618 S.W.3d at 357 (“[C]ourts have recognized
that procurement or causation need not be proven directly, but may be established
by inference.”). In light of this evidence, we cannot say that the trial court abused
its discretion by finding by a preponderance of the evidence that the doctrine of
forfeiture by wrongdoing applied and thus Roman was barred from objecting to the
admission of Wiley’s out-of-court statements based on the Confrontation Clause.
See Shepherd, 489 S.W.3d at 572 (reviewing forfeiture by wrongdoing doctrine
finding under abuse of discretion standard applicable to admission of evidence); see
also Osbourn, 92 S.W.3d at 538 (stating trial court does not abuse its discretion by
admitting evidence if there is some evidence to support trial court’s decision).
Roman argues that the doctrine of forfeiture by wrongdoing does not apply
because the evidence supports alternative inferences for Wiley’s failure to appear at
trial. According to Roman, Wiley’s role in Wilson’s shooting is “unclear,” and he
posits that Wiley may have “exaggerated her written statement to deflect from
herself” and she “disappeared to avoid confronting her own culpability [with respect
to Wilson’s robbery and shooting] or simply to get away from her circumstances to
start [a] new life in a different place away from her past bad acquaintances and
memories.” In an Article 38.49 hearing, the trial court is the sole trier of fact and
33 judge of the credibility of the witnesses and the weight to be given their testimony
and the evidence. See Schindler, 2018 WL 4924946, at *6 (citing Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). To the extent the record supports
alternative inferences regarding Wiley’s unavailability to testify at trial, we must
defer to the trial court’s resolution of any conflicting inferences. See Byrd, 2022 WL
2719060, at *6; see also Byrd, 2022 WL 2719060, at *6 (stating when assessing
evidence regarding acts alleged to have procured witness’ unavailability, appellate
courts draw all reasonable inferences in favor of trial court’s finding) (citing Brown,
618 S.W.3d at 357).
We hold the trial court did not abuse its discretion by finding that the doctrine
of forfeiture by wrongdoing barred Roman from objecting to the admission of
Wiley’s out-of-court statements based on the Confrontation Clause or by admitting
Wiley’s written statement into evidence over Roman’s Confrontation Clause
objection. See Colone, 573 S.W.3d at 264–65 (stating defendant who wrongfully
procures witness’ unavailability cannot later challenge admission of witness’ out-of-
court statements because witness is unavailable for cross-examination).
D. Harmless Error
We agree with the State that even if the trial court abused its discretion by
holding the doctrine of forfeiture by wrongdoing applied and admitting Wiley’s out-
of-court statement into evidence, the error was harmless because (1) the same or
34 similar evidence was admitted without objection, (2) Wiley’s statement was only
one piece of the evidence corroborating Wilson’s testimony that Roman shot him in
the shoulder while attempting to rob him, and (3) Roman relied on Wiley’s statement
to support his defensive theory that Wilson, who provided direct evidence of the
offense, was neither credible nor deserving of justice.
Wilson’s testimony was the key evidence at trial that established the elements
of the offense of aggravated robbery.15 Wilson testified that he made arrangements
to meet Wiley in the parking lot of her apartment building and have sex with her in
his SUV in exchange for money. After he got off work, Wilson drove to Wiley’s
apartment building, parked in the parking lot, and waited in his SUV for Wiley.
Wiley got in the front passenger seat of Wilson’s SUV and then reached back and
unlocked the back passenger-side door. Roman, who was wearing a black baseball
cap and glasses, climbed into the backseat, tased Wilson, and demanded money from
15 To establish that Roman committed the offense of aggravated robbery as alleged in the indictment, the State was required to prove that Roman, while in the course of committing theft of property owned by Wilson, and with intent to obtain and maintain control of the property, intentionally and knowingly threatened and placed Wilson in fear of imminent bodily injury and death while using and exhibiting a deadly weapon, namely, a firearm. See TEX. PENAL CODE § 29.03(a)(2) (defining elements of aggravated robbery with deadly weapon); § 29.02(a)(2) (defining elements of robbery); see also id. § 1.07(17)(A) (defining “deadly weapon” to include firearm). A person commits theft if he appropriates property without the owner’s consent and with intent to deprive the owner of the property. Id. at § 31.03(a), (b)(1). “‘In the course of committing theft’ means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.” Id. at § 29.01(1).
35 him. Roman and Wilson fought for control of the taser in the backseat of the SUV
and when the taser dropped to the floor, Roman pulled out his pistol and shot Wilson
in the shoulder. Roman ran away after the shooting. The physical evidence collected
from inside Wilson’s SUV, including the black baseball cap, eyeglasses, stun baton,
fired shell casing, and the bullet patterns corroborates Wilson’s testimony.
Wiley gave a similar account in her sworn statement to Captain Alley,
corroborating much of Wilson’s testimony. According to Wiley, Roman told her to
text Wilson and tell him that she would have sex with him “for $140, so that [she]
could get [her] hair done.” When Wilson arrived at Wiley’s apartment building,
Wiley sat down in the front passenger seat of Wilson’s SUV and then unlocked the
rear passenger side door for Roman. Wiley knew that Roman was bringing his
pistol, but she did not know that he had a taser. According to Wiley, Roman got in
the SUV through the unlocked door and he and Wilson “started wrestling in the back
seat.” Wiley could not see anything, but she “heard like three gunshots” and then
Roman yelled at Wiley to unlock the door. Wiley unlocked the doors and she and
Roman got out of Wilson’s SUV before Wilson drove away.
A summary of Wiley’s statement was included in Webb’s probable cause
affidavit, which was admitted into evidence without objection as State Exhibit 63.
In his affidavit, Webb stated:
Roman had Wiley contact Wilson to arrange a meeting because he was going to make Wilson “come to an understanding about stopping him 36 from calling her”. Wiley told Alley that she knew he had a pistol but didn’t know anything about him having a taser. Roman had told Wiley to bring a towel when she went to Wilson’s vehicle so he could wrap up his pistol with it when he was through. Roman later told Wiley that he would break her jaw and leave her paralyzed if she told the police what he had done.
During closing arguments, the State argued that Wilson’s testimony proved
that Roman committed aggravated robbery when he demanded money from Wilson
and shot Wilson in the shoulder. According to the State, Wiley’s statement, the
physical evidence collected from the SUV, and the testimony of the officers and
experts merely corroborated Wilson’s testimony.
Despite his objections, Roman relied heavily on Wiley’s out-of-court
statement in his closing argument to support his defensive theory that Wilson was a
deceitful sexual predator who could not be trusted to tell the truth. Roman argued
that Wilson lied to the jury when he denied sexually assaulting Wiley, having sex
with her before her 17th birthday, and going inside her apartment, because Wiley
told Captain Alley that Wilson had done each of those things. Roman also argued
that Wilson’s testimony that Roman demanded money from him was not credible
because Wiley did not say anything about a robbery in her statement.
The record thus reflects that the same or similar material facts included in
Wiley’s out-of-court statement about the shooting and robbery were admitted
without objection through Wilson’s testimony and Investigator Webb’s probable
cause affidavit. See Sanders v. State, 422 S.W.3d 809, 818 (Tex. App.—Fort Worth
37 2014, pet. ref’d) (holding any error in admission of statement in violation of
defendant’s right to confrontation was harmless because other unobjected-to
evidence established same facts). While Wiley’s out-of-court statement played a
supporting role in the State’s case as one of several pieces of evidence corroborating
Wilson’s testimony, Wiley’s allegations against Wilson were an important
component of Roman’s defense, because they directly contradicted portions of
Wilson’s testimony, undermining his credibility, and Wiley’s statement was the only
evidence that Wilson had sexually assaulted Wiley and had sex with her when she
was underage.
Thus, even if Wiley’s out-of-court statement was admitted erroneously, the
admission of this evidence was not harmful because the same or similar facts were
admitted elsewhere without objection, Wiley’s statement was not an important part
of the State’s case, Roman used Wiley’s statement case to support his defensive
theory that Wilson was neither credible nor deserving of sympathy, and Wiley’s
statement did not significantly contribute to the strength of the prosecution’s case.
See id.; Johnson v. State, No. 14-22-00050-CR, 2023 WL 5217800, at *5 (Tex.
App.—Houston [14th Dist.] Aug. 15, 2023, no pet.) (mem. op., not designated for
publication) (holding admission of expert witness testimony harmless because “it
was not particularly important to the State’s case, it assisted appellant’s case in
corroborating appellant’s self-defense theory, there was no evidence contradicting
38 [expert’s] conclusions, and it did not significantly contribute to the strength of the
prosecution’s case”).
For these reasons, we conclude beyond a reasonable doubt that to the extent
the admission of Wiley’s out-of-court statement was erroneous, it did not materially
affect the jury’s deliberations. See Scott, 227 S.W.3d at 690.
We overrule Roman’s first issue.
Charge Error
In his second issue, Roman argues the trial court erred in failing to include a
verdict form for the lesser included offense of aggravated assault because the body
and the application paragraph of the charge include language instructing the jury on
aggravated assault and thus the omission of the verdict form was “confusing and
misleading” for the jury. But as the State points out, the jury charge does include a
verdict form for the lesser-included offense of aggravated assault.
The submitted charge instructed the jury regarding the offenses of aggravated
robbery, aggravated assault, and unlawful possession of firearm by a felon. In
relevant part, the jury charge states:
Count II – Aggravated Robbery
Application of Law to Facts
Although the state has charged the defendant with the offense of aggravated robbery, you may find the defendant not guilty of that
39 charged offense but guilty of a lesser included offense. In this case, the offense of aggravated assault is a lesser included offense of the charged and greater offense of aggravated robbery.
You may discuss the two offenses in any order you choose, starting with the offense of aggravated robbery or the offense of aggravated assault.
In deciding the defendant’s guilt or innocence, however, you should first address whether the state has proved the charged offense of aggravated robbery. If you find the defendant guilty of aggravated robbery, you should so indicate on the verdict form.
To find the defendant guilty of aggravated robbery, you must determine whether the state has proved, beyond a reasonable doubt, four elements. The elements are that-
1. the defendant, in Colorado County, Texas, on or about October 16, 2020, intentionally, knowingly or recklessly caused bodily injury to Craig Anthony Wilson by shooting Craig Anthony Wilson with a firearm; and
2. the defendant did this in the course of committing theft of property owned by Craig Anthony Wilson; and
3. the defendant had the intent to obtain or maintain control of the property that was the subject of the theft; and
4. the defendant used or exhibited a deadly weapon, a firearm.
You must all agree on elements 1, 2, 3, and 4 listed above. If you all agree the state has proved, beyond a reasonable doubt, each of the four elements listed above, you must find the defendant “guilty” of aggravated robbery and so indicate on the attached verdict form, titled “Verdict-Guilty of Aggravated Robbery.”
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, 3 and 4 listed above, you must find the defendant “not guilty” of aggravated robbery.
40 If you find the defendant is not guilty of aggravated robbery, or if after all reasonable efforts to do so you are not able to reach a unanimous verdict on the charged offense of aggravated robbery, you should next address whether the state has proved the lesser included offense of aggravated assault. If you find the defendant guilty of aggravated assault, you should so indicate on the appropriate verdict form, titled “Verdict-Guilty of Aggravated Assault.”
To find the defendant guilty of aggravated assault, you must determine whether the state has proved, beyond a reasonable doubt, three elements. The elements are that–
1. the defendant in Colorado County, Texas on or about October 16, 2020, caused bodily injury to Craig Anthony Wilson by shooting Craig Anthony Wilson with a firearm; and
2. the defendant did this either—
a. intending to cause bodily injury; or
b. knowing that he would cause bodily injury; or
c. with recklessness about whether he would cause bodily injury; and
3. the defendant used or exhibited a deadly weapon during the alleged assault.
You must all agree on elements 1, 2, and 3 listed above.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, and 3 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, each of the 3 elements above, you must find the defendant “guilty” of aggravated assault.
And the verdict form states:
41 (Choose One)
VERDICT—NOT GUILTY OF AGGRAVATED ROBBERY
We, the jury, find the defendant, JOHN ALBERTO ROMAN, not guilty.
________________________ Foreperson of the Jury
________________________ Printed Name of Foreperson
VERDICT—GUILTY OF AGGRAVATED ROBBERY
We, the jury, find the defendant, JOHN ALBERTO ROMAN, guilty of Aggravated Robbery, as charged in the indictment.
VERDICT—GUILTY OF AGGRAVATED ASSAULT lesser included offense
We, the jury, find the defendant, JOHN ALBERTO ROMAN, not guilty of Aggravated Robbery as charged in the indictment, but guilty of the lesser offense of Aggravated Assault.
Although the jury charge does not include a “NOT GUILTY” verdict form for the
lesser-included offense of aggravated assault, Roman is not challenging this on
42 appeal. Rather, his challenge is based on his mistaken belief that the charge did not
include any verdict form for the offense of aggravated assault.
Were we to construe Roman’s appellate argument liberally as challenging the
omission of a “NOT GUILTY” verdict form for the lesser-included offense of
aggravated assault, he still would not prevail because assuming without deciding that
the charge is erroneous, the error is harmless.
We may only reverse for charge error if the error is harmful. See Jordan v.
State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020); see also TEX. CODE CRIM.
PROC. art. 36.19 (stating trial court’s judgment should not be reversed unless record
shows jury charge error was calculated to injure defendant’s rights, or unless record
demonstrates defendant did not have fair and impartial trial). The level of harm
necessary for reversal depends on whether the appellant properly objected to the
error. Jordan, 593 S.W.3d at 346 (citing Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1984)). If the appellant preserved the error, we review the charge
error under the “some harm” standard. See Jordan, 593 S.W.3d at 346 (citing
Almanza, 686 S.W.2d at 171). “Some harm” means “actual harm and not merely a
theoretical complaint.” Jordan, 593 S.W.3d at 347. If error is not preserved, we
review the error under the more stringent “egregious harm” standard. See id. at 346
(citing Almanza, 686 S.W.2d at 171).
43 Most of the charge conference was conducted off the record. During the
portion of the charge conference reflected in the record, the trial court asked Roman
if he had any objections to the charge, and Roman’s counsel replied, “We object
only to that portion of the charge relating to the lesser included offense of aggravated
assault.” The trial court stated the objection was “[d]uly noted and overruled.” The
record thus does not reflect that Roman objected to the omission of a “not guilty”
verdict form for the lesser-included offense of aggravated assault. See Dixon v.
State, 595 S.W.3d 216, 223 (Tex. Crim. App. 2020) (stating appellant has “burden
to bring forth a record showing that error was preserved”); Broxton v. State, 909
S.W.2d 912, 918 (Tex. Crim. App. 1995) (appellate issue “must correspond to the
objection made at trial”). As such, we may reverse only if the omission of a “NOT
GUILTY” verdict form for the lesser-included offense of aggravated assault resulted
in egregious harm. See Jordan, 593 S.W.3d at 346 (citing Almanza, 686 S.W.2d at
171).
Having been properly instructed on the law applicable to the greater offense
of aggravated robbery and the lesser-included offense of aggravated assault, the jury
found Roman guilty of the greater offense of aggravated robbery. See generally
Hawk v. State, No. 05-98-00697-CR, 2000 WL 1682996, at *5 (Tex. App.—Dallas
Nov. 10, 2000, pet. ref’d) (mem. op., not designated for publication) (“By finding
appellant guilty of the charged offense, the trial court implicitly rejected finding
44 appellant guilty of a lesser-included offense.”). The jury’s finding of guilty with
respect to the greater offense supports the conclusion that Roman was not
egregiously harmed by the omission of a “NOT GUILTY” verdict form for the
lesser-included offense. See Render v. State, 316 S.W.3d 846, 854 (Tex. App.—
Dallas 2010, pet. ref’d) (“The fact that the jury convicted appellant of the greater
offense supports the conclusion that appellant was not egregiously harmed by the
omission of a not guilty verdict form [for the lesser included offense].”); see also
Castillo v. State, No. 10-09-00286-CR, 2011 WL 5221238, at *4 (Tex. App.—Waco
Oct. 26, 2011, pet. ref’d) (mem. op., not designated for publication) (same).
Roman does not dispute that there is sufficient evidence to support his
conviction for the greater offense of aggravated robbery. Roman pled “true” to the
enhancement allegation, and after finding the allegation to be “true,” the jury
assessed Roman’s punishment at 99-years’ confinement for the greater offense of
aggravated robbery. Because the jury found the enhancement allegation to be true,
Roman’s punishment range for the greater offense of aggravated robbery was no less
than fifteen years and no more than ninety-nine years or for life and the punishment
range for the lesser-included offense of aggravated assault was no less than five years
and no more than ninety-nine years or life. Thus, Roman was facing the same
maximum sentence regardless of whether he was convicted of aggravated robbery
or aggravated assault. Because the jury assessed Roman’s punishment at 99 years’
45 confinement, this factor weighs against egregious harm. See Vasquez v. State, 389
S.W.3d 361, 368–69 (Tex. Crim. App. 2012) (stating courts may consider entire jury
charge, state of evidence, arguments of counsel, and other relevant information
revealed by trial record of trial when evaluating error for egregious harm).
In light of the above, we conclude that even if the omission in the jury charge
of a “NOT GUILTY” verdict form for the lesser-included offense of aggravated
assault was erroneous, the error did not result in egregious harm to Roman.
We overrule Roman’s second issue.
Conclusion
We affirm the trial court’s judgment.
Veronica Rivas-Molloy Justice
Panel consists of Justices Goodman, Rivas-Molloy, and Guerra.
Do Not Publish. TEX. R. APP. P. 47.2(b).
Related
Cite This Page — Counsel Stack
John Alberto Roman v. the State of Texas, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-alberto-roman-v-the-state-of-texas-texapp-2023.