State v. Jeffrey Morales

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

NO. 3-91-570-CR

THE STATE OF TEXAS,

APPELLANT

vs.

JEFFREY MORALES,

APPELLEE

FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY

NO. 350-254, HONORABLE WILFRED AGUILAR, JUDGE PRESIDING

This is an appeal by the State from the trial court's mid-trial order granting

appellee's pretrial motion to dismiss the information and the cause with prejudice. See Tex. Code

Crim. Proc. Ann. art. 44.01(a)(1) (West Supp. 1992). Appellee was charged by information with

the offense of a Class A misdemeanor assault. Tex. Penal Code Ann. § 22.01 (West 1989). The

issue presented is whether the trial court had the authority to dismiss the cause based on appellee's

dismissal motion in which he claimed his due process and due course of law rights under the

federal and state constitutions were violated because the State did not preserve a non-custodial

tape-recorded interview of appellee by a police officer. We will reverse.

Appellee filed a pretrial motion to dismiss the cause with prejudice. He alleged that

the unpreserved tape recording was exculpatory in nature, that it raised the issue of self-defense,

and claimed that he would suffer immeasurable harm as a result of not being able to rely upon the

recording in presenting his defense. Prior to trial, the trial court conducted a hearing on

appellee's motion and took the matter under advisement. The State then presented its case-in-chief, that consisted of the testimony of the complainant, Dylan Preas, and Jason Eckstrom, who

was seated near Preas at the time of the assault, but who was not otherwise involved. The tape

recording was not mentioned in the presentation of the State's evidence. Appellee then renewed

his motion to dismiss based on the allegations in his motion. (1) The trial court overruled the

dismissal motion. Sergeant Rodriguo Herrera of the Austin Police Department was the first

defense witness. He had taped the interview with appellee. When he was asked on direct

examination about the interview, the trial court removed the jury and reminded counsel that a

motion in limine had been granted prohibiting the parties from inquiring about the fact that

appellee had a brother who was a member of the Austin Police Department. The colloquy that

followed led to a reconsideration of the dismissal motion. The trial court then granted the motion

and terminated the prosecution.

With this background, we shall examine the facts underlying the trial court's action

in dismissing the information. At the pretrial hearing on appellee's motion to dismiss, Sergeant

Herrera testified that in his investigation of the assault on Preas that occurred on August 11, 1990,

he interviewed Preas on August 14, 1990, and that he then filed aggravated assault charges against

appellee. Later, at Herrera's request, appellee came to the police station. After being warned by

Herrera of his rights, appellee indicated his willingness to have the interview taped. Herrera

explained that some but not all interviews by the Austin Police Department are tape-recorded, and

that in the instant case he decided to use a tape. This was in accordance with normal practice of

the Austin Police Department. After the interview, the tape was placed in the case file. Herrera

revealed that during his investigation he learned that the six or eight men, who had later joined

in the assault upon the complainant, were gang members who had had previous difficulty with the

law. Herrera stated that when this fact, among others, was relayed to the mother of the

complainant, the mother indicated that "they" wanted to drop the charge against appellee. Herrera

told the complainant's mother that she would have to contact the district attorney's office for that

purpose. Assuming that the case was being dismissed, Herrera stated that at a later date he reused

the tape in another interview and taped over the interview with appellee. Herrera explained that

tapes not being held as evidence were reused in this manner.

Herrera acknowledged that he could not recall everything that was said during the

interview but believed that he could recall most of the conversation. Herrera stated that appellee

admitted hitting the complainant "because he (complainant) was messing with my girl." Appellee

explained that his girlfriend had been receiving calls from the complainant; that he (appellee) was

tired of the complainant; that he saw the complainant at a party and walked up to the complainant;

that complainant jumped off a wall and threw a cigarette down; and that he (appellee) hit the

complainant. Appellee explained to Herrera, "[T]hen a bunch of guys came in and starting

beating up the victim."

Herrera testified that during the interview he told appellee that he did not believe

appellee's story that he had not talked to the other assailants before the assault, or appellee's

statement that he had not consulted with his brother, an Austin police officer, prior to the

interview. (2)

Herrera did not consider the evidence obtained to be exculpatory. He did not recall

any statement by appellee that he acted in self-defense. He did recall that appellee took it to be

"a move of aggression" when the complainant jumped off a rock wall and threw down a cigarette.

Herrera could not recall that appellee stated that the complainant had "flicked a cigarette" at

appellee and "bowed up," but admitted it could have been said.

Appellee testified for the limited purpose of the pretrial hearing. He admitted that

Sergeant Herrera had given him warnings about his rights and that he had agreed to have the

interview taped. Appellee revealed that he told Herrera that he had hit the complainant and why.

Appellee testified that he told Herrera that he had approached the complainant who was sitting on

a rock wall with a friend, told him that they needed to talk, and informed the complainant to quit

calling appellee's girlfriend, harassing her, and driving by her house. Appellee stated that he

revealed to Herrera that at this point the complainant stood up, flicked a cigarette on him, and said

that "he was not scared of me"; that the complainant "stood up straight" and his chest was out;

and that he (appellee) felt that the complainant was getting ready to hit him, so he hit the

complainant.

Appellee said that he told Herrera the "black guys," who later joined the attack on

the complainant, were individuals with whom he had attended high school, but that he had not

talked to them prior to the confrontation with the complainant. Appellee stated he had given

Herrera the names of several witnesses and told him where they were standing at the time of the

incident. Appellee stated that he "pretty much so" remembered the conversation with Herrera,

but when asked if there was anything that had been said in the interview that had not been related

by Herrera or by him, appellee replied he would have to hear the tape, which had not been

preserved.

Appellee testified that he was permitted to leave and that Herrera promised to

contact him if a warrant was issued to give him an opportunity to turn himself in to the proper

authorities. Appellee stated he was never called nor arrested for the charged offense. Neither

party contends that there was custodial interrogation. (3) See Oregon v. Mathison , 429 U.S. 492

(1977).

At the conclusion of the pretrial hearing, the trial court took the matter under

advisement. When the State rested its case-in-chief, appellee reargued his dismissal motion and

argued that he was going to have to waive his Fifth Amendment privilege "against testifying" to

get his defense before the jury because the State had not preserved the tape-recorded interview.

The State argued that appellee had failed to show bad faith on the part of the police and that the

statements made were non-exculpatory and inadmissible hearsay. Nevertheless, the prosecutor

observed that Sergeant Herrera was present to testify as to his recollections of the interview, and

further "agreed to stipulate to anything defense counsel believes was said by the defendant to

Sergeant Herrera, whether it was said or not." The offer was declined because "the jury is

entitled to hear what demeanor they can pick up from the recorded statement . . . the tone of his

(appellee's) voice . . . ." Appellee was aware at this time that the tape was no longer in existence.

The trial court denied the motion to dismiss the cause. Later, during the presentation of the case

for the defense, the trial court reconsidered and granted the pretrial motion to dismiss and

terminated the prosecution.

Generally speaking, a court's authority to act is limited to those actions authorized

by constitution, statute, or common law. State v. Johnson , 821 S.W.2d 609, 612 (Tex. Crim.

App. 1991). In addition to specific power to act conferred by constitutional or statutory provision

or common law, all courts have inherent authority to take certain actions. Eichelberger v.

Eichelberger , 582 S.W.2d 395 , 398 n.1 (Tex. 1973) (a court has inherent judicial power that it

may call upon to aid in the exercise of its jurisdiction, in the administration of justice, or in the

preservation of its independence and integrity). Courts also have implied authority to act arising

from specific grants of power. Johnson , 821 S.W.2d at 612 . Thus, a court may take a particular

action only if that action is authorized by constitutional provision, statute, or common law, or the

power to take the action arises from an inherent or implied power. Id .

We turn now to the question of whether a trial court has the authority to dismiss

a criminal case. It has been consistently held that, in the absence of constitutional or statutory

authority, a trial court cannot dismiss a prosecution except on the motion of the prosecuting

attorney. Wallace v. State , 170 S.W.2d 762, 764 (Tex. Crim. App. 1943); State v. Shelton , 802

S.W.2d 80, 81 (Tex. App.--Austin 1990), vacated on other grounds , 830 S.W.2d 605 (Tex. Crim.

App. 1992); State v. Gray , 801 S.W.2d 10, 11 (Tex. App.--Austin 1990, no pet.); State v. Fox ,

772 S.W.2d 455, 457 (Tex. App.--Beaumont 1989, no pet.). However, trial courts have implicitly

been granted the authority to dismiss a criminal prosecution without a motion by the prosecuting

attorney when an exception to the charging instrument is granted or when the defendant's special

plea is sustained. See Tex. Code Crim. Proc. Ann. arts. 27.01-28.14 (West 1989); Gray , 801

S.W.2d at 11 ; see also State v. Eaves , 800 S.W.2d 220 (Tex. Crim. App. 1990). This is also true

"when a defendant has been denied a speedy trial or, pursuant to article 32.01, when a defendant

is detained and no charging instrument is properly presented." Johnson , 821 S.W.2d at 612 n.2;

see also Zani v. State , 701 S.W.2d 249, 253 (Tex. Crim. App. 1983) (motion to dismiss

indictment is correct means of challenging a prosecution prior to trial where the defendant had

previously been granted immunity).

Texas Code Crim. Proc. Ann. art. 44.01(a)(1) (West Supp. 1992) permits the State

to appeal an order that dismisses all or any portion of an indictment, information, or complaint.

The statute does not, however, authorize the trial judge to dismiss a criminal case without the

consent of the prosecutor. Johnson , 821 S.W.2d at 613 ; Chandler , 767 S.W.2d 211, 212 (Tex.

App.--Eastland 1989, no pet.).

In Johnson , the Court of Criminal Appeals made plain its holding: "In sum, there

is no general authority, written or unwritten, inherent or implied, which would permit a trial court

to dismiss a case without the prosecutor's consent." Johnson , 821 S.W.2d at 613 ; see also Barre

v. State , 826 S.W.2d 722, 725 (Tex. App.--Houston [14th Dist.] 1992, pet. ref'd). Harris County

District Attorney's Office v. Burns , 825 S.W.2d 198, 201 (Tex. App.--Houston [14th Dist.] 1992,

pet. ref'd). We conclude that in the instant case the trial court was without authority to dismiss

the information without the prosecutor's consent.

If it can be argued that the trial court had authority to support its action, appellee

was not entitled to the remedy he sought, i.e., dismissal of the information. This leads to our

consideration of "what might loosely be called the area of constitutionally guaranteed access to

evidence." United States v. Valenzuela-Bernal , 458 U.S. 858, 867 (1982); Cuesta v. State , 763

S.W.2d 547, 555 (Tex. App.--Amarillo 1988, no pet). The question presented is one involving

a failure to preserve potentially exculpatory evidence, not a failure to disclose evidence. See

Brady v. Maryland , 373 U.S. 83, 87 (1963); United States v. Bagley , 473 U.S. 667, 676 (1983). In Cuesta , the court wrote:

In California v. Trombetta , 467 U.S. 479 , 104 S.Ct. 2528 , 81 L.Ed.2d 413

(1984), the Supreme Court addressed the question of whether the Fourteenth

Amendment requires that the prosecution preserve potentially exculpatory

evidence. Trombetta arose out of a drunken driving prosecution in which the State

introduced the results of an alcohol breath test. Counsel for the defense sought to

suppress the test results on the ground that the State failed to preserve the breath

samples used in the test. The Supreme Court rejected the defendant's argument,

holding that the State's duty to preserve evidence must be limited to evidence that

might be expected to play a significant role in the defense of the accused. 467

U.S. at 488-89 , 104 S.Ct. at 2533-34 , 81 L.Ed.2d at 422 . Furthermore, to meet

this standard of constitutional materiality, the evidence must possess an exculpatory

value that was apparent to the State before the evidence was lost or destroyed, and

it must be of such nature that the defendant would be unable to obtain comparable

evidence by other reasonably available means. Id . In Trombetta the Supreme

Court found no due process violation because (1) the officers acted in good faith

and in accord with their normal practice, (2) in light of the procedures actually

used, the chances that the evidence in question would have exculpated the

defendants were slim, and (3) the defendants had alternative means of

demonstrating their innocence. Id .

Cuesta , 763 S.W.2d at 555 ; see also Gardner v. State , 745 S.W.2d 955, 958-59 (Tex.

App.--Austin 1988, no pet.).

More recently, the Supreme Court has held that the failure to preserve potentially

useful evidence does not constitute a denial of due process under the Fourteenth Amendment

unless the defendant can show bad faith on the part of the State. Arizona v. Youngblood , 488 U.S.

51 (1988); see also United States v. Galvan-Garcia , 872 F.2d 638, 641 (5th Cir. 1989); Saldana

v. State , 783 S.W.2d 22, 23 (Tex. App.--Austin 1990, no pet.).

In the instant case, the trial court expressly declared that there was no bad faith on

the part of the State, and we do not understand appellee to contend otherwise. This is supported

by the record. In this context, bad faith would be shown if the State knew the item destroyed was

exculpatory. See Youngblood , 488 U.S. at 56 ; Trombetta , 467 U.S. at 488 . Officer Herrera had

no knowledge of the exculpatory value, if any, of the unpreserved tape. He reused the tape in

accordance with normal practice after understanding the case would be dismissed by the

complainant. Based on the testimony of Herrera and appellee himself, the taped interview must

be viewed as highly incriminating. Appellee acknowledged that he initiated the confrontation and

struck the first blow. The chances that the evidence in question would have exculpated appellee

were slim. Exculpatory evidence is generally that evidence which would clear or tend to clear

the accused from fault or guilt. County v. State , 812 S.W.2d 303, 313 (Tex. Crim. App. 1989);

Davis v. State , 474 S.W.2d 466, 467-68 (Tex. Crim. App. 1971); Moore v. State , 60 S.W.2d

453, 454 (Tex. Crim. App. 1933). For the specific purposes of the rule constraining the State

from disposing of potentially exculpatory evidence, the rule is the same. Gibson v. State , 718

P.2d 283, 283 (Idaho 1986).

The statements supposedly made in the taped interview and upon which appellee

relies would not have established self-defense (4) as a matter of law. See Daniel v. State , 668

S.W.2d 390, 393 (Tex. Crim. App. 1984). The statements, however, may have been sufficient

for submitting the issue of self-defense to the jury. Id . It was undisputed that appellee brought

about the confrontation. Appellee relies on the testimony that the complainant got off of the wall,

flicked a cigarette at or on appellee, stood up straight and "bowed" his chest, and said he was not

afraid of appellee. Appellee testified that he told Herrera that at this point in the confrontation

he felt that the complainant was getting ready to hit him, and he regarded complainant's actions

as a "move of aggression." Appellee insisted at trial that without this "exculpatory" evidence he

could not raise the issue of self-defense without surrendering his privilege against self-incrimination. Of course, the use of force against another is not justified by verbal provocation

alone or, with certain exceptions, when the other's use or attempted use of unlawful force has

been provoked. See Tex. Penal Code Ann. § 9.31 (b)(1) & (4) (West 1974).

Even if the statement to Herrera could be considered "exculpatory," as self-serving

out-of-court statements, they were inadmissible hearsay. Hafdahl v. State , 805 S.W.2d 396, 402

(Tex. Crim. App. 1990), cert. denied , U.S. , 111 S. Ct. 2250 (1991). It is the general

rule in Texas that self-serving declarations are not admissible in evidence as proof of the facts

asserted. Allridge v. State , 762 S.W.2d 146, 152 (Tex. Crim. App. 1988), stay denied , 488 U.S.

1026 , cert. denied , 489 U.S. 10401 (1989); 24 Tex. Jur. 3d Criminal Law § 3058 (1982).

Exceptions to this general rule were noted in Singletary v. State , 509 S.W.2d 572, 576 (Tex.

Crim. App. 1974). The statements in question do not qualify under the "res gestae" exception.

They were made in an out-of-court setting days after the alleged offense when appellee had had

ample time to consider and calmly reflect on what had happened. The statements also fail to pass

muster as a part of a statement or conversation previously proven by the State. The State made

no effort to present any evidence of the taped interview in its case-in-chief or at any other time.

The third exception involves statements that are necessary to explain or contradict acts or

declarations first offered by the State. The theory behind the third exception was explained in

Reado v. State , 690 S.W.2d 15, 17 (Tex. App.--Beaumont 1984, pet. ref'd). It does not mean that

all self-serving statements by an accused are admissible. Id . When the accused does not testify,

self-serving statements are not admissible in evidence when they merely contradict some act or

declaration first proffered by the State. Id . The statements must be necessary to explain or

contradict an act or declaration first offered by the State to prevent the fact finder from being

misled or perceiving a false, incorrect impression. Id .; see also Starks v. State , 776 S.W.2d 808,

811 (Tex. App.--Fort Worth 1989, pet. ref'd) (defendant, who elected not to testify at trial, was

not entitled to offer exculpatory statement made to police that contradicted same acts or

declarations first offered by the prosecution). In the instant case, appellee did not testify or show

that he was entitled to prevail under the third exception. Unless a defendant's self-serving

statements fall under any of the enumerated exceptions to the general rule, they are not admissible

into evidence. Allridge , 762 S.W.2d at 152 . Appellee's self-serving statements were not

admissible under these circumstances even if they are considered as "exculpatory."

Moreover, appellee had alternative means of demonstrating his innocence or raising

the issue of self-defense without having to testify himself. Self-defense may be raised by the

testimony of witnesses other than the defendant. Smith v. State , 676 S.W.2d 584, 586-571 (Tex.

Crim. App. 1984); Reed v. State , 703 S.W.2d 380, 384 (Tex. App.--Dallas 1986, pet. ref'd).

Appellee told Herrera the names of several eye witnesses and explained where they were standing

at the time of the alleged offense. There was no showing that these witnesses were unavailable

at the time of trial. Eckstrom, who was sitting on the wall with the complainant but was not

involved in the incident, was a State's witness. Appellee had the opportunity to cross-examine

Eckstrom but he was unable to establish any evidence raising the issue of self-defense. Further,

the State offered to stipulate as to what the appellee claimed he said in the taped interview. The

offer was not accepted. It is clear that appellee was able or should have been able to obtain

comparable evidence by reasonable means. See Trombetta , 467 U.S. at 488 . It is obvious from

this cold record that appellee's counsel was trying to get as much mileage as possible out of the

lack of preservation issue without waiving it. Counsel was painfully aware that if he succeeded

in getting the "exculpatory" evidence before the jury, the role of optional completeness would

come into play and permit the State to introduce the balance of the conversation with Herrera

which contained highly incriminating evidence. See Tex. R. Crim. Evid. 107. The failure to

preserve the taped interview did not constitute, under the presented circumstances, a violation of

due process or due course of law as claimed by appellee. Even if it can be said that the trial court

had authority to dismiss the information, his basis for doing so was erroneous. The State's point

of error is sustained.

The district court's order dismissing the indictment and cause is reversed. The

cause is reinstated and remanded to the trial court for proceedings consistent with this opinion.

The motion to dismiss was that of appellee. Such motion is assumed to remove any barrier to re-prosecution. Cf. Crawford v. State , 703 S.W.2d 655, 662 (Tex. Crim. App. 1986); Fields v.

State , 627 S.W.2d 714, 720 (Tex. Crim. App. 1982); Chvojka v. State , 582 S.W.2d 828, 830-31

(Tex. Crim. App. 1979); see also United States v. Divitz , 424 U.S. 600 (1976); United States v.

Jarn , 400 U.S. 470 (1971).

John F. Onion, Jr., Justice

[Before Justices Powers, B. A. Smith and Onion * ]

Reversed and Remanded

Filed: December 23, 1992

[Publish]

* Before John F. Onion, Jr., Presiding Judge retired, Court of Criminal Appeals, sitting by

assignment. See Tex. Gov't Code Ann. § 74.003 (b) (West 1988).

1. The motion was not urged as a motion for an instructed verdict.

2. Herrera testified that he did not know appellee had a brother on the police force until

the time of the interview.

3. Neither party makes reference to Tex. Code Crim. Proc. Ann. art. 38.22, § 3(b) (West

Supp. 1993), which requires the preservation of every electronic recording of any statement

made by an accused during a custodial interrogation . Obviously, neither party considered the

interview in question to have been custodial interrogation.

4. Tex. Penal Code Ann. § 9.31 (a) & (b) (West 1974) provides:

(a) Except as provided in Subsection (b) of this section, a person is justified

in using force against another when and to the degree he reasonably

believes the force is immediately necessary to protect himself against the

other's use or attempted use of unlawful force.

(b) The use of force against another is not justified:

(1) in response to verbal provocation alone;

(2) to resist an arrest or search that the actor knows is being made by a

peace officer, or by a person acting in a peace officer's presence and

at his direction, even though the arrest or search is unlawful, unless

the resistance is justified under Subsection (c) of this section;

(3) if the actor consented to the exact force used or attempted by the

other; or

(4) if the actor provoked the other's use or attempted use of unlawful

force, unless:

(A) the actor abandons the encounter, or clearly communicates to the

other his intent to do so reasonably believing he cannot safely

abandon the encounter; and

(B) the other nevertheless continues or attempts to use unlawful force

against the actor.