| Summer 2016 17
of his girlfriend, after testimony from a police officer
about the girlfriend’s statements to him three weeks
before her death.
Her statements included descrip-
tions of physical violence and threats to kill her.
ing the pendency of his appeal, the Supreme Court de-
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.
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
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.
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.
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
, a family violence case in which Garcia assaulted
his girlfriend/common-law wife, Christina Cooper.
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.
A few days before trial
he scolded her for getting served with a subpoena, and
for not being harder to find.
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.”
the Court held the record supported the trial court’s
findings, and upheld Garcia’s forfeiture of his Confron-
tation Clause rights.
In another family violence case,
Pena v. State,
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.
jailhouse phone call showed a comment from him in-
dicating he might call Child Protective Services about
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.
But it also held the comment
about calling CPS was a threat intended to prevent her
In light of that, the trial court did not
abuse discretion in admitting the statements.
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-
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.
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.”