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In Chambers

| Summer 2016 17

of his girlfriend, after testimony from a police officer

about the girlfriend’s statements to him three weeks

before her death.

13

Her statements included descrip-

tions of physical violence and threats to kill her.

14

Dur-

ing the pendency of his appeal, the Supreme Court de-

cided the

Crawford

case.The California appellate courts

upheld the conviction, stating the defendant forfeited

his right of confrontation by committing the murder

and that caused the witness to be unavailable.

15

Justice Scalia, again writing for the Court, held there

were only two exceptions to the right of confrontation

at the time of the Founding. The first was the dying

declaration, which required the statement to be made

by a person “…on the brink of death and aware he

was dying.”

16

The second was forfeiture by wrongdoing,

which required the witness to be “detained” or “kept

away” by the defendant’s actions, either personally or

by someone acting in his behalf.

17

The test now is that

the defendant must have committed the wrongdoing

with the intent to cause or prevent a witness to not be

available to testify.

18

Since

Giles

was decided, there have been few re-

ported cases on forfeiture by wrongdoing in Texas.The

Austin Court of Appeals dealt with the issue in

Garcia

v. State

, a family violence case in which Garcia assaulted

his girlfriend/common-law wife, Christina Cooper.

19

Al-

though she was subpoenaed, she did not appear at trial,

and the evidence was introduced through her mother,

doctor, and investigating officers. The trial court held

a hearing outside the presence of the jury, and subse-

quently made detailed findings of fact and conclusions

of law, which showed Garcia intimidated Cooper with

jailhouse phone calls and letters, attempted to re-es-

tablish their relationship and told her she could hurt

him by talking about the case.

20

A few days before trial

he scolded her for getting served with a subpoena, and

for not being harder to find.

21

Cooper was crying and

apologizing during the jailhouse call.

Based on all those findings, the trial court concluded

“…the acts of the Defendant show that he intended

to keep the witness from testifying. As a result, Defen-

dant forfeited his confrontation claims.”

22

On appeal,

the Court held the record supported the trial court’s

findings, and upheld Garcia’s forfeiture of his Confron-

tation Clause rights.

23

In another family violence case,

Pena v. State,

a para-

medic testified to what the victim told him about Pe-

na’s assault of her and his threat to kill her and leave

her in a ditch where she would never be found.

24

A

jailhouse phone call showed a comment from him in-

dicating he might call Child Protective Services about

her children.

25

She subsequently did not respond to a

subpoena and did not testify.

The Austin Court of Appeals held the threat to kill

the victim did not show the specific intent to prevent

her from testifying.

26

But it also held the comment

about calling CPS was a threat intended to prevent her

from testifying.

27

In light of that, the trial court did not

abuse discretion in admitting the statements.

28

The current Article 38.49 of the Code of Criminal

Procedure attempts to codify the Court decisions on

the doctrine. It provides that a party to a criminal case

may not benefit by wrongfully procuring the unavail-

ability of a witness, and forfeits the right to object to

evidence about that through forfeiture by wrongdo-

ing.

29

The trial court is to hold a hearing outside the

presence of the jury, and consider evidence supporting

forfeiture by wrongdoing, using preponderance of the

evidence as the burden of proof.

30

The prosecution in a case should

be proactive early in the process,

especially in family violence cases, if

there is any suggestion a witness may

be reluctant or afraid to testify.”