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18

In Chambers

| Summer 2016

I

Trial Court Actions

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. Evidence of the relationship between the par-

ties should be gathered, including jailhouse phone calls

or letters, where an intent to threaten or coerce a wit-

ness to not testify could be found.

When confronted with the suggestion of forfeiture,

the trial court must conduct a hearing outside the

presence of the jury. Art. 38.49 states this should be

done, if practicable, before trial.

31

The issue could, how-

ever, arise during trial, which would require the court

to conduct such a hearing with the jury excused.

A trial court needs to be aware that in considering

evidence offered to prove that a party has engaged or

acquiesced in causing a witness to be unavailable, it is

not required for it to be shown that:

1. the sole

intent was to wrongfully cause the un-

availability, or

2. the actions constituted a criminal offense, or

3. any statements offered are reliable.

32

The issue of forfeiture by wrongdoing will be some-

thing trial courts will be confronting on an increased

basis. The judge should be aware of the doctrine, and

be prepared to handle it when it is raised, preferable

before trial, but in the midst of a trial if necessary. Un-

der the current Supreme Court precedent, the court

will need to ensure there is evidence of intent on the

part of the party in causing the unavailability of a witness.

(Endnotes)

1.

Crawford v.Washington, 541 US 36, 124

S.Ct.

1354 (2004).

2.

Id. at 62.

3.

Reynolds v. U.S., 98 US 145, 159 (1878).

4.

Gonzales v. State, 195 S.W.3d 114 (Tex. Crim.App., 2006).

5.

Id. at 116.

6.

Gonzales v. State, 155 S.W.3d 603, 610 (Tex.App. – San Antonio 2004).

7.

Gonzales, supra at 120.

8.

Id. at 121.

9.

Id. at 121.

10. Id. at 125.

11. Sohail v. State, 264 S.W.3d 251, 256 (Tex. App. – Houston [1st Dist.]

2008, pet. ref ’d).

12. Id. at 259.

13. Giles v. California, 554 US 353, 128 S. Ct. 2678 (2008).

14. Id. at 356-357.

15. People v. Giles, 19 Cal.Rptr.3d 843, 847 (2004), People v. Giles, 55 Cal.

Rptr.3d 133, 152 P.3d 433, 435 (2007).

16. Giles v. California, supra at 358.

17. Id. at 359.

18. Id. at 359-364.

19. Garcia v. State, 2012 WL 3795447 (Tex. App. – Austin 2012, pet.ref ’d)

(memo. op. – not designated for publication).

20. Id. at 8 – 9.

21. Id. at 8.

22. Id. at 8.

23. Id. at 9.

24. Pena v. State, No. 03-08-00546-CR, 2009WL 2900742 at 4-5 (Tex.App.

– Austin 2009, no writ)(mem. op., not designated for publication).

25. Id. at 5-6.

26. Id. at 6-7.

27. Id. at 6-7.

28. Id. at 6-7.

29. Tex.Crim.Proc.Code Ann. art. 38.49(a)(1) & (2).

30. Tex.Crim.Proc.Code Ann. art. 38.49(c).

31. Tex.Crim.Proc.Code Ann. art. 38.49(c).

32. Tex.Crim.Proc.Code Ann. art. 38.49(d).

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