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Editor: Colin Miller
Univ. of South Carolina School of Law

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Friday, September 14, 2012

That's Just Wrong: Court Of Appeals Of Texas Finds Forfeiture By Wrongdoing Despite No Direct Evidence Of Threat

Sticking with the forfeiture theme from the last several days, the recent opinion of the Court of Appeals of Texas, Austin, in Garcia v. State, 2012 WL 3795447 (Tex.App.-Austin 2012), raises an interesting question: Can there be forfeiture by wrongdoing when the State concedes that there was no direct evidence that the defendant made a direct threat to a witness not to testify? According to the court, the answer is "yes."

In Garcia, a jury convicted appellant Roy Garcia of the offenses of assault family violence, strangulation, and assault family violence, repeat offender. These crimes were allegedly committed against his girlfriend or common-law wife, Lily Cooper, who, despite being subpoenaed to testify,  did not appear at trial. The district court, however, allowed for the admission of her hearsay statements under the doctrine of forfeiture by wrongdoing based upon the following factual findings:

•The Defendant intimidated and dissuaded the victim from resorting to outside help before and during the crime.  

•The Defendant dissuaded the victim from participating in the criminal prosecution of this case.  

•On March 1, 2011, the Defendant wrote Ms. Cooper and told her to get his charge dropped to a misdemeanor.  

•The Defendant continued to write Ms. Cooper and call her to re-establish their relationship.  

•The Defendant told Ms. Cooper that she could hurt him while talking about the case.  

•The Defendant pressured Ms. Cooper not to testify by saying, "I need to know where you stand; you don't need to go at all."  

•On Saturday before trial, the Defendant scolded Ms. Cooper for getting served for this trial setting, saying she should not have gotten served and saying that she was a whole lot easier to find than most people. He claimed that she tried not to avoid service. Ms. Cooper was crying and apologizing for messing up.

•The Defendant told Ms. Cooper to stop visiting him at the jail because she needed to lay low.

After he was convicted, Garcia appealed, claiming that there was insufficient evidence that he engaged in wrongdoing that caused Cooper not to appear at trial. The Court of Appeals of Texas, Austin, disagreed, finding that

Although, as the State conceded during trial, there was no evidence that Garcia made a direct threat to Cooper not to testify, there was evidence tending to show that Garcia, through his misconduct, encouraged and persuaded Cooper to violate the subpoena and not appear in court to testify.

This finding was contrary to the testimony of Cooper's lawyer, who testified that

he was authorized by Cooper to represent to the court "that she did not wish to testify" but that "[i]t was not a result of threat or fear or coercion on the part of the accused, Roy, that there were other reasons."

The Court of Appeals, however, found this testimony unpersuasive, concluding that

Although Cooper's lawyer claimed otherwise, the district court was free to disbelieve the representation that Cooper had made to her lawyer and instead credit the other evidence in the record tending to show that Garcia had engaged in a pattern of misconduct prior to trial that was intended to prevent Cooper from testifying and making use of the judicial process. This evidence included the testimony of witnesses with knowledge of the relationship between Cooper and Garcia, letters and other documentary evidence which tended to demonstrate the abusive and ongoing nature of that relationship, and audio recordings in which Garcia both explicitly and implicitly discouraged Cooper from trusting the prosecutors and appearing at trial. We cannot conclude on this record that the district court abused its discretion in admitting Cooper's out-of-court statements based on its conclusion that Garcia forfeited by wrongdoing his rights under the Confrontation Clause.

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/09/sticking-with-the-forfeiture-theme-from-the-last-several-days-the-recent-opinion-of-the-court-of-appeals-of-texas-austin-i.html

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Comments

By "That's just wrong" are you implying you disagree with the court. I found the analysis through and penetrating and correct. I'm actually surprised this came out of Texas as they are normally so bad. Maybe some of the reforms are actually working.

I think the efforts by the district judge and the court of appeals is exactly the way this type of cases needs to be handled. There were detailed factual finding and they were supported by the record. I concur with the appeals court that Giles does not require a direct threat (it's not a magic word ruling) and that specific intent can be inferred from the totality of the circumstances when supported by a constellation of independent factors. The only thing I was a little bothered about was the "especial relevance" language because I see DV as an exception rather than the other way around. There was another hiccup but it had nothing to do with the CC per se.

Overall, decent job.

Posted by: Daniel | Sep 14, 2012 8:46:32 PM

Daniel: Agreed. The "wrong" was the defendant's behavior, not the court's decision.

Posted by: Colin Miller | Sep 15, 2012 3:37:47 AM

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