Justice, Texas-Style: Court Of Appeals Of Texas Makes Correct Evidentiary Rulings But Baffling Harmless Error Conclusion In Assault Appeal

The recent opinion of the Court of Appeals of Texas in Aguilar v. State, 2008 WL 5058974 (Tex.App.-Houston 2008), reveals two important, and yet oft-ignored, aspects of most rules of evidence:  (1) a party cannot call a witness for the sole purpose of impeaching him or her, and (2) for the past recollection recorded hearsay exception to apply, the declarant must vouch for the accuracy of the statement at issue.  It also contains a hard to swallow dose of Texas style justice.

In Aguilar, Amado H. Aguilar appealed from his conviction for aggravated assault with a deadly weapon based upon his alleged assault of Christopher Luhan.  And part of the evidence used to convict him was a statement that Clifton Mancias made to Eagle Lake police officer Steve Nelson; according to Mancias, Aguilar told him that he had shot Luhan.  Mancias, however, did not make this claim at trial. 

Instead, when the prosecution called Mancias to testify about the prior statement, Aguilar objected because he suspected that Mancias did not remember giving the statement to police and believed that the prosecution's sole purpose for calling Mancias was to impeach him with his prior statement.  And his suspicions were well founded because, at a hearing outside the presence of the jury, Mancias testified that he had no memory of giving an oral or written statement to the police.  The prosecution, however, requested to call Mancias to "impeach him with his statements," and the trial court overruled Aguilar's objection and permitted Mancias to testify, followed by Officer Nelson's testimony that he took a statement from Mancias in which he stated that Aguilar told Mancias that he had shot Luhan.

On appeal, Aguilar claimed, inter alia, that Mancias' statement to Nelson was improperly admitted, and the Court of Appeals began by noting that, under Texas Rule of Evidence 607, "[t]he credibility of a witness may be attacked by any party, including the party calling the witness."  However, the court also found (and most courts have found at least somewhat similarly) that a party "cannot call a witness that it knows will testify unfavorably for the sole purpose of impeaching that witness with otherwise inadmissible hearsay."

Thus, Mancias' prior statement was improperly admitted because "the State learned during the hearing outside the presence of the jury that Mancias did not remember making a statement to the police. Further, Mancias gave no favorable testimony to the State, nor did the State expect that Mancias would give favorable testimony."

The prosecution, however, tried to get around this conundrum by arguing that Mancias' statement to Nelson was not inadmissible hearsay but instead a recorded recollection under Texas Rule of Evidence 803(5), which provides an exception to the rule against hearsay for:

     "[a] memorandum or record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly, unless the circumstances of preparation cast doubt on the document's trustworthiness."

According to the court,

     "[t]he predicate for past recollection recorded is set forth in Rule 803(5) and requires that four elements be met: (1) the witness must have had firsthand knowledge of the event, (2) the written statement must be an original memorandum made at or near the time of the event while the witness had a clear and accurate memory of it, (3) the witness must lack a present recollection of the event, and (4) the witness must vouch for the accuracy of the written memorandum."

The problem for the prosecution was that:

     "Mancias did not vouch for the accuracy of the statement. When asked whether he remembered making the statement, Mancias responded that he did not remember making the statement, nor did he remember signing the statement. Mancias acknowledged that the statement was signed by 'Indigo Night Wolf,' which is his nickname, but testified that he never signs official documents with his nickname. Therefore, the State failed to meet the fourth criterion for admissibility as a past recollection recorded." (And I would argue that it failed the second criterion as well).

So, Aguilar won his appeal, right?  Well, actually, the Court of Appeals found the trial court's error to be harmless.  And how did it reach this conclusion?  Was there forensic evidence supporting the conviction?  Did eyewitnesses testify?  Did other people hear Aguilar confess?  No, no, and no.  Instead, according to the court,

     "At trial, Luhan testified that [Aguilar] shot him. Further, Officer David Wiese, an officer who responded to the scene of the shooting, testified that he asked Luhan who shot him and Luhan identified [Aguilar]. Therefore, the court admitted the only damaging evidence from Mancias' statement, that appellant shot Luhan, through other sources. Because the same evidence was admitted without objection, the error is harmless."

Really?  So, the trial court's error in admitting evidence of Aguilar's alleged confession was harmless solely because the victim identified him twice?  Is the Court of Appeals really saying that a victim's identification of the defendant as his assailant is the same as the defendant's confession to the crime?  It looks to me as if this is a clear case where the Court of Criminal Appeals of Texas needs to reverse and order a new trial.

-CM