COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-305-CR
WILLIAM
ROBERT DAVIS APPELLANT
V.
THE
STATE OF TEXAS STATE
------------
FROM
CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
OPINION
I. Introduction
A
jury convicted Appellant William Robert Davis of capital murder and the trial
court sentenced him to life imprisonment after the State waived the death
penalty. In three points, Appellant argues that the trial court erred by
admitting testimony in violation of the husband-wife privilege and the Sixth
Amendment of the United States Constitution and by overruling his objections
during closing arguments to the State’s allegedly improper comments. We
will affirm.
II. Factual
Background
Appellant
telephoned his mother, who lived in El Paso, at approximately 3:00 o’clock
a.m. on December 8, 2001, and told her that there was a dead body in his living
room. Appellant said that he thought he might have killed someone.
Sometime after this call, Appellant’s mother phoned Rebecca Sapien,
Appellant’s common law wife who lived in Fort Worth, to ask her to
investigate. Appellant and Sapien did not reside together at the time, but
Sapien told Appellant’s mother that Appellant had come to her apartment and
was safely sleeping. Sapien agreed to go to Appellant’s apartment to
investigate Appellant’s claims that a body was in his apartment.
Sapien
went to Appellant’s apartment and discovered a woman’s body lying just
inside the front door of Appellant’s apartment. Sapien called 911, and
police arrived quickly at the apartment. Sapien initially told police that
Appellant represented to her that he had killed a woman and that her body was
inside his apartment. The dead woman was later identified as Nicole
Krienke.
Krienke’s
autopsy revealed severe bruising to her abdomen, cigarette burns to her eyelids
and other parts of her body, and vaginal and rectal tears. The medical
examiner ultimately determined the cause of Krienke’s death to be blunt force
trauma to her abdomen and chest.
After
his arrest, Appellant shared a cell with Derrick Jones. Appellant told
Jones that a black man named Paul had tortured and killed Krienke. Later,
Appellant told Jones that he had killed Krienke while he was on narcotics
because she had spent all of his money. Appellant also told Jones that he
was looking for a black man, who was a drug addict, to blame for the
crime. Appellant offered Jones money and Whirlpool appliances as
compensation if Jones could locate such an individual. Jones subsequently
informed police of Appellant’s statements to him.
Appellant
pleaded not guilty to capital murder. A jury trial commenced, and during
closing arguments the State called Appellant’s contentions that another
individual may have committed the murder a “rabbit trail.” The jury
found Appellant guilty of capital murder, and this appeal followed.
III.
Admissibility Of Ms. Sapien’s Statements To Officer Born
In
his first and second points, Appellant argues that the trial court erred by
allowing the police officer who initially spoke with Sapien at Appellant’s
apartment, Officer Jennifer Born, to testify concerning Sapien’s
statements. Appellant claims that Sapien’s statements were inadmissible
because they were privileged under the husband-wife privilege and, further, that
the admission of Sapien’s statements through Officer Born violated his Sixth
Amendment Confrontation Clause rights. According to the State, Appellant
waived the husband-wife privilege and the admission of Officer Born’s
testimony concerning Sapien’s statements to her did not violate the
Confrontation Clause.
A.
Standard of Review
We
will not disturb a trial court's decision to admit or exclude evidence absent an
abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 390-91
(Tex. Crim. App. 1991) (op. on reh'g). It follows that the admission of
evidence is within the sound discretion of the trial court. Metts v.
State, 22 S.W.3d 544, 550 (Tex. App.—Fort Worth 2000, pet. ref’d)
If the trial court's ruling is within the zone of reasonable disagreement, we
will not disturb it on appeal. Id. Furthermore, if we can
uphold the trial court's decision on any theory applicable to the case, we will
do so. Id.; see also Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997) (holding that appellate court should normally defer to trial
court's evidentiary rulings).
B. Confrontation Clause and Crawford
The
United States Supreme Court revised the analytical framework used to determine
the admissibility of hearsay statements in light of a defendant’s Sixth
Amendment right to confrontation in Crawford v. Washington, 541 U.S. 36,
124 S. Ct. 1354 (2004). There, the Court performed an extensive evaluation
of the historical underpinnings of the Confrontation Clause and stated that
“[a]lthough the results of our decisions have generally been faithful to the
original meaning of the Confrontation Clause, the same cannot be said of our
rationales.” Id. at 1369. After noting the rule in Ohio
v. Roberts, which conditioned the admissibility of hearsay evidence on
whether it falls within a “firmly rooted hearsay exception” or bears
“particularized guarantees of trustworthiness,” the Court reasoned that this
approach was inconsistent with the historical and logical purposes surrounding
the original intent of the Confrontation Clause. See id.; Ohio v.
Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539 (1980). In discussing
the rule set out in Roberts and the inherent problems associated
therewith, the Court stated that “[w]here testimonial statements are involved,
we do not think the Framers meant to leave the Sixth Amendment’s protection to
the vagaries of the rules of evidence, much less to amorphous notions of
‘reliability.’” Crawford, 124 S. Ct. at 1370.
The
Supreme Court in Crawford adopted a new standard for analyzing the
admissibility of out-of-court statements made by an unavailable declarant,
placing a heavy emphasis on the testimonial or non-testimonial nature of the
statement. Id. at 1374. The Court stated that “[w]here
non-testimonial hearsay is at issue, it is wholly consistent with the Framers’
design to afford the States flexibility in their development of hearsay law . .
. .” Id. The Court went on to conclude that “[w]here
testimonial evidence is at issue, however, the Sixth Amendment demands what the
common law required: unavailability and a prior opportunity for cross
examination.” Id.
Thus,
the first step required in any Confrontation Clause analysis is a determination
of whether the statement is testimonial or non-testimonial. See id.
The Supreme Court in Crawford, however, declined to provide an exhaustive
list or definition of what type of statements qualify as “testimonial”
statements.1 See id. But
the Court in Crawford did recognize that statements made in the following
contexts were undisputedly testimonial: ex parte testimony at a
preliminary hearing, testimony before a grand jury, testimony at a former trial,
and statements derived from police interrogations. See id.
Notwithstanding
the Court’s reluctance to provide an explicit definition of “testimonial,”
we find guidance in case law addressing whether a particular statement is
testimonial or non-testimonial. See, e.g., State v.
Barnes, 854 A.2d 208, 209 (Me. 2004) (concluding that statements of
defendant’s mother, the victim, not given in response to custodial
interrogation were non-testimonial); People v. Bryant, No. 247039, 2004
WL 1882661, *1 (Mich. App. Aug. 24, 2004) (holding Crawford inapplicable
because police question of “[w]hat happended” to declarant did not
constitute custodial interrogation); Leavitt v. Arave, 383 F.3d 809, 830
n.22 (9th Cir. 2004) (concluding that hearsay statements of unavailable
declarant to police and dispatchers were non-testimonial in nature); State v.
Blackstock, 598 S.E.2d 412, 419-20 (N.C. Ct. App. 2004) (holding that
statements made to family were non-testimonial); Evans v. Luebbers, 371
F.3d 438, 444-45 (8th Cir. 2004) (holding that, assuming Crawford applied
retroactively, hearsay statements by unavailable declarant to multiple witnesses
that she feared petitioner, that she had been verbally and physcally abused by
petitioner, and that she intended to divorce petitioner were non-testimonial); see
also United States v. Gonzalez-Marichal, 317 F. Supp. 2d 1200,
1201-04 (S.D. Cal. 2004) (holding that statements made during custodial
interrogation concerning alienage were testimonial and inadmissible under Crawford).
Officer
Born testified that Sapien said Appellant had come to her residence earlier that
morning. Appellant told Sapien that he “had killed a woman and she was inside
his apartment.” The State called Officer Born to testify concerning
Appellant’s statements to Sapien because Sapien invoked her privilege not to
testify against Appellant, her common law husband, pursuant to the husband-wife
privilege. See Tex. R. Evid.
504(b). The trial court granted Appellant a running objection to Officer
Born’s testimony about any of his statements to Sapien while the couple was
alone, arguing that such statements were privileged under the husband-wife
privilege. Appellant’s trial counsel also objected on confrontation
grounds, arguing that the admission of Officer Born’s statements would violate
Appellant’s Sixth Amendment right to confrontation. The trial court
overruled Appellant’s husband-wife-privilege objection; the trial court
concluded that because Appellant previously disclosed “basically . . . the
same admission” to Ms. Davis, his mother, he did not intend for the
information to be confidential under Texas Rule of Evidence 504(a)(1). See
Tex. R. Evid. 504(a)(1) (“A
communication is confidential if it is made privately by any person to the
person’s spouse and it is not intended for disclosure to any other
person.”) The trial court also declined to exclude Officer Born’s
statements on confrontation grounds.
We
begin our analysis of Appellant’s second point by determining whether
Sapien’s statements to Officer Born were testimonial or non-testimonial.
Appellant argues that Sapien’s statements were testimonial in nature:
The evidence reflects that while Ms. Sapien may have been hysterical
(implicating the excited utterance exception to the hearsay rule), nevertheless
her statement was made in an interview with Officer Born, an interview that
Officer Born was apparently sent to conduct. . . . For that reason, it was
testimonial and the Constitution required that it be subjected to the
“crucible of cross examination” or excluded from evidence.
We
cannot agree that Sapien’s statements to Officer Born were testimonial in
nature. Sapien voluntarily called police after discovering the body of Ms.
Krienke. She further voluntarily informed Officer Born of the statements
that Appellant made to her. These statements, while made to an officer,
were neither the product of custodial interrogation nor responses to
“tactically structured police questioning.” See Barnes, 854
A.2d at 211; Bryant, 2004 WL 1882661, at *1. Moreover, the record
does not reflect that the police considered Sapien to be a suspect, an
accomplice, or a co-conspirator. Thus, the statements by Sapien to Officer
Born do not fall within any of the categories of testimonial statements
identified in Crawford. See Crawford, 124 S. Ct. at 1374.
Nor do Sapien’s statements to Officer Born appear to be the type of hearsay
statements Crawford intended to exclude. Id. Accordingly,
we hold that the trial court did not abuse its discretion by admitting Officer
Born’s testimony concerning Sapien’s statements to her over Appellant’s
Confrontation Clause objections. See Montgomery, 810 S.W.2d at
390. We overrule Appellant’s second point.
C.
Husband-Wife Privilege
In
his first point, Appellant argues that the trial court abused its discretion and
violated the husband-wife privilege that existed between himself and Sapien when
it allowed Officer Born to testify concerning Sapien’s statement to her during
the initial discovery and investigation of the incident.
Texas
Rule of Evidence 504 provides for the husband-wife privilege. Tex. R. Evid. 504. It states:
(a)
Confidential Communication Privilege.
(1)
Definition. A communication is confidential if it is made privately by
any person to the person’s spouse and it is not intended for disclosure to any
other person.
(2)
Rule of privilege. A person, whether or not a party, or the guardian or
representative of an incompetent or deceased person, has a privilege during
marriage and afterwards to refuse to disclose and to prevent another from
disclosing a confidential communication made to the person’s spouse while they
were married.
Id.
While, arguably, the primary purpose of the rules of evidence is to exclude
unreliable evidence, privileges exist to serve another purpose. See
Ludwig v. State, 931 S.W.2d 239, 242 (Tex. Crim. App 1996). “The
basis of the immunity given to communications between husband and wife is the
protection of marital confidences, regarded as so essential to the preservation
of the marriage relationship as to outweigh the disadvantages to the
administration of justice which the privilege entails.” Wolfle v.
United States, 291 U.S. 7, 14, 54 S. Ct. 279, 280 (1934).
The
privilege rules do, however, have their limitations, as is evidenced by Texas
Rule of Evidence 511. Applicable to all of the privileges provided for in
the Texas Rules of Evidence, it states, “A person upon whom these rules confer
a privilege against disclosure waives the privilege if: (1) the person . . .
voluntarily discloses or consents to disclosure of any significant part of the
privileged matter . . . .” Tex. R. Evid. 511(1). Thus,
disclosure of “any significant part” of the privileged material waives the
privilege. See Terrell State Hosp. of Tex. Dep’t of Mental Health
& Mental Retardation v. Ashworth, 794 S.W.2d 937, 940 (Tex.
App.—Dallas 1990, orig. proceeding).
We
first examine whether Appellant’s statement to his mother constitutes a
significant part of his allegedly privileged communication to Sapien.
Appellant’s mother testified to the following:
Q: [Prosecutor] When your son called you, what was he calling you about?
A:
[Ms. Davis] He called me and told me that--he said, Mom, there is a body in my
living room. He said, I think I’ve killed someone . . . .
Officer
Born testified to the following statement by Sapien:
Q:
[Prosecutor] What did Rebecca Sapien tell you about why you were called out
there?
A:
[Officer Born] She said that her husband had come home and told her he had
killed a woman and she was inside his apartment.
Appellant
argues that these two statements are entirely different. He argues that
his statement, “I think I have killed someone,” is more passive in nature
than his statement to Sapien, “I killed a woman.” Appellant argues that his
statement to Sapien “is an affirmative statement that he killed a woman. It
gets the gender right and assumes responsibility for the death affirmatively,
not speculatively.” Concerning his statement to his mother, Appellant
asserts
that he assumed that he might be responsible for the death since he was alone in
the house with the body. He did not affirmatively say, ‘I killed
someone,’ in the sense that he was certain of that fact, but rather that he
assumed he might have killed someone from the circumstantial evidence that
confronted him.
The
State contends that Appellant’s two statements are similar enough to result in
a waiver of the husband-wife privilege. The State argues that it is the
subject matter of the statements that is important and not the fact that
Appellant first stated that he killed “someone” and then later stated that
he killed “a woman.” The State asserts, “[T]he similarities in the
statements far outweigh the differences and are such that there is virtually no
room for confusion regarding the subject matter of the communication.”
We
agree with the State. We hold that the two statements made by Appellant
are similar enough to result in a waiver of the husband-wife privilege
concerning Appellant’s statement to Sapien that he killed a woman. The
“significant part” of Appellant’s statement to Sapien, which he also
disclosed to his mother, is the admission that he killed a person and that the
person’s body was in his apartment. Because Appellant communicated a
“significant part” of the statement that he made to his wife to a third
party—his mother, Ms. Davis—he waived application of the husband wife
privilege to his statement to Sapien. See Tex. R. Evid. 511(1). We hold that
the trial court did not abuse its discretion when it admitted Officer Born’s
testimony concerning Appellant’s statement to Sapien. We overrule
Appellant’s first point. See id.; Ashworth, 794 S.W.2d at
940.
IV. Improper
Jury Argument
In
his third point, Appellant argues that the State engaged in improper jury
argument by striking at him over the shoulders of his counsel. He contends
that the State’s arguments constituted a personal attack on trial
counsel. The State maintains that the statements were directly related to
evidence presented by Appellant.
The
purpose of closing argument is to facilitate the jury's proper analysis of the
evidence presented at trial in order to arrive at a just and reasonable
conclusion based solely on the evidence. Barnes v. State, 70 S.W.3d
294, 308 (Tex. App.—Fort Worth 2002, pet. ref'd). To be permissible, the
State's jury argument must fall within one of the following four general areas:
(1) summation of the evidence, (2) reasonable deduction from the evidence, (3)
answer to argument of opposing counsel, or (4) plea for law enforcement. Felder
v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992), cert. denied,
510 U.S. 829 (1993); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim.
App. 1973). If a jury argument exceeds the bounds of proper argument, the
trial court's erroneous overruling of a defendant's objection is not reversible
error unless it affected the Appellant’s substantial rights. Tex. R. App. P. 44.2(b); Martinez v.
State, 17 S.W.3d 677, 692-93 (Tex. Crim. App. 2000); Mosley v. State,
983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh'g), cert. denied,
526 U.S. 1070 (1999). In determining whether the Appellant’s substantial
rights were affected, we consider: (1) the severity of the misconduct (i.e., the
prejudicial effect of the prosecutor’s remarks), (2) curative measures, and
(3) the certainty of conviction absent the misconduct. Martinez, 17
S.W.3d at 692-93; Mosley, 983 S.W.2d at 259.
The
State may not strike at a defendant over the shoulders of his counsel or accuse
defense counsel of bad faith or insincerity during argument. Wilson v.
State, 938 S.W.2d 57, 60 (Tex. Crim. App. 1996), abrogated on other
grounds by Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002).
Uninvited and unsubstantiated accusations of misconduct directed at a
defendant's attorney are manifestly improper because they serve to inflame the
minds of the jury to the defendant's prejudice. McMurrough v. State,
995 S.W.2d 944, 947 (Tex. App.—Fort Worth 1999, no pet.). A prosecutor
runs a risk of improperly striking a defendant over the shoulder of counsel when
the argument personally impugns opposing counsel's character. Mosley,
983 S.W.2d at 259. However, “[c]ounsel is allowed wide latitude without
limitation in drawing inferences from the evidence so long as the inferences
drawn are reasonable, fair, legitimate, and offered in good faith.” Gaddis
v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). Such inferences
may be based upon what the jury heard and observed in the courtroom during the
presentation of evidence. Vaughn v. State, 607 S.W.2d 914, 923
(Tex. Crim. App. [Panel Op.] 1980).
The
State made the following remarks during closing argument of the guilt-innocence
phase:
[State] So--and you’ve heard no evidence whatsoever that someone else
committed this crime. There has been no evidence. I know you heard it at opening
statements and the Judge said we will see if it’s backed up. Well, it
wasn’t. There is no evidence that anybody but this Defendant committed that
crime. And the defense will lay out or show you some rabbit trails to go down
and we--
[Defense
Counsel] Your Honor, I’m going to object to that as striking at the Defendant
over the shoulders or [sic] counsel.
[The
Court] Overruled.
[Defense
Counsel] And we ask for a running objection.
[The
Court] Granted.
[State]
They are going to give you the Jack rabbit trail, the Paul rabbit trail, the
crack pipe rabbit trail. We need twelve people to vote unanimously of guilty for
capital murder. We only need one gullible juror to walk down a rabbit trail to
get a hung jury. We need twelve people. Y’all need to work together.
Here,
the record demonstrates that defense counsel introduced evidence giving rise to
the possibility that someone other than Appellant murdered Ms. Krienke.
During the cross-examination of Ms. Davis, trial counsel elicited testimony from
her that Appellant told her he had met an individual named Jack at a bar.
Defense counsel later elicited testimony from Derrick Jones, Appellant’s cell
mate. Jones testified that Appellant told him that a man named Paul had murdered
Ms. Krienke. Additionally, defense counsel elicited testimony from several
witnesses that a crack pipe was found in Appellant’s apartment, possibly
raising the inference that it belonged to another. Because trial counsel
for Appellant elicited such testimony, raising the possibility that someone
other than Appellant committed the murder, the State was permitted to address
and respond to those arguments in its closing argument. See Vaughn,
607 S.W.2d at 923. Moreover, it does not appear that the statements were made in
bad faith or said to personally impugn opposing counsel's character. See
Gaddis, 753 S.W.2d at 398; Harris v. State, 122 S.W.3d 871, 883-86
(Tex. App.—Fort Worth 2003, pet. ref’d) (holding that prosecutor’s
comments during closing argument were made in response to defendant’s
arguments and, therefore, did not strike at Appellant over the shoulder of his
counsel). We overrule Appellant’s third point.
V. Conclusion
Having
overruled each of Appellant’s points, we affirm the trial court judgment.
SUE
WALKER
JUSTICE
PANEL
B: HOLMAN, WALKER, and MCCOY, JJ.
DO
NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED:
January 27, 2005
NOTES
1.
The Court stated, “We leave for another day any effort to spell out a
comprehensive definition of ‘testimonial.’” Id.