PD-1292-19 03/11/2020
1. “The Court of Appeals erred when it held appellant’s actions invoked the forfeiture by wrongdoing doctrine in violation of the sixth amendment’s right to confront one’s accuser: is not knowing the location of a witness wrongdoing – especially if the State was able to serve the witness with a subpoena after said action?”
2. “The Court of Appeals erred when it held the witness was unavailable to testify even though she had been served with a subpoena and the State of Texas made no further effort to secure her appearance.”
Brown assaulted his girlfriend L.H. at their home. The State issued a subpoena for L.H. to testify, and the District Attorney’s investigator attempted to serve it. Appellant answered the door and told the investigator that he and L.H. were no longer together and thus he did not know her location; he informed the investigator she had family in Ohio. Four days later when the investigator returned to their home, L.H. slammed the door in his face; he told her he was leaving the subpoena on the door. L.H. did not appear to testify. Over Brown’s objection, the trial court permitted L.H.’s statements to police from the night of the assault to be admitted under the forfeiture-by-wrong-doing statute—Tex. Code Crim. Proc. art. 38.49(c). Evidence supporting the ruling, which showed Brown’s continued influence over L.H., included a recently posted photo of L.H. and Brown on L.H.’s FaceBook page captioned, “Together We Stand Strong,” and video of the two captioned, “Me and my baby at the scrapyard.” The trial court also took judicial notice of a prior case when Brown assaulted L.H.
The court of appeals upheld the ruling. It noted that forfeiture by wrongdoing is particularly relevant in domestic violence cases. The U.S. Supreme Court has stated that “acts of domestic violence” are “intended to dissuade” the victim from seeking help and cooperating with the prosecution. Giles v. California, 554 U.S. 353 (2008). Here, the trial court acted within its discretion because Brown tried to hinder service and had previously assaulted L.H. Also, it could be inferred that L.H. slammed the door to avoid service because she feared Brown’s reaction if she cooperated.
Brown argues that the evidence must show that he acted wrongfully and that his wrongful conduct caused L.H.’s unavailablity. He contends that the lower court rendered the “wrongful” element meaningless because it allowed the State to prove it by L.H.’s mere absence. Further, there is no evidence that he engaged in any wrongdoing to prevent L.H. from testifying. Next, he contends that the court of appeals conflated unavailability—a requirement of Article 38.49(c)—with absenteeism. Unavailability requires the State to show that it made a reasonable effort to procure the witness’ appearance. Because of the trial court’s scheduling in this case, the State had a day to secure L.H.’s appearance after she no-showed, but it made no effort to do so. Service of the subpoena alone, Brown argues, is not enough to establish unavailability.
