“Since appellant preserved error by raising an objection to the hearsay, the burden then became the State’s to show that the evidence was admissible pursuant to some exception to the hearsay rule.”
How later courts described this case
- “Since appellant preserved error by raising an objection to the hearsay, the burden then became the State’s to show that the evidence was admissible pursuant to some exception to the hearsay rule.”
Written by the judges who cited it.
The opinion
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1292-19
FREDERICK L. BROWN, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
GREGG COUNTY
YEARY, J., filed a dissenting opinion.
DISSENTING OPINION
The Court concludes that the State presented insufficient evidence to show that
Appellant engaged in wrongdoing intended to cause the complainant’s absence at trial. It
holds, therefore, that the doctrine of forfeiture by wrongdoing (an exception to enforcement
of the Sixth Amendment Confrontation Clause) categorically does not apply in this case. 1
1
The doctrine of forfeiture by wrongdoing was first described by the United States
Supreme Court. See Crawford v. Washington, 541 U.S. 36, 62 (2004); Reynolds v. United States,
98 U.S. 145, 158–59 (1879). Later on, this Court began to apply the doctrine in Texas. See
Gonzalez v. State, 195 S.W.3d 114, 124–26 (Tex. Crim. App. 2006). The doctrine has now been
BROWN ― 2
But I disagree with its conclusion that insufficient evidence supported the trial court’s
finding that Appellant engaged in wrongdoing that was intended to prevent the
complainant’s attendance at trial. According to our law, the elements of forfeiture by
wrongdoing need only be established by a preponderance of the evidence. TEX. CODE
CRIM. PROC. art. 38.49(c). So, in my view, the trial court did not abuse its discretion to
infer, from Appellant’s misrepresentations to the process server about Hutzelman’s
location, his persistent abuse of Hutzelman, and her subsequent reluctance to meet with the
process server once he found her at home, that Appellant engaged in wrongdoing intended
to prevent her attendance at trial. I would not, as the Court does today, simply declare that
the evidence is insufficient to establish wrongdoing by Appellant, and hold, for that reason
alone, that the doctrine of forfeiture by wrongdoing is inapplicable.
But I would also not simply declare it to be applicable. The court of appeals refused
to address Appellant’s argument concerning the second part of the forfeiture by
wrongdoing doctrine—that the State had failed to demonstrate that the complainant was
codified in Article 38.49 of our Code of Criminal Procedure. In relevant part, Article 38.49
provides:
(a) A party to a criminal case who wrongfully procures the unavailability of
a witness or prospective witness:
(1) may not benefit from the wrongdoing by depriving the trier
of fact of relevant evidence and testimony; and
(2) forfeits the party’s right to object to the admissibility of
evidence or statements based on the unavailability of the witness as
provided by this article through forfeiture by wrongdoing.
Subsection (b) expressly requires a finding that the wrongdoing have been “intended to . . . procure
the unavailability” of the witness, and that it actually “did” so. Subsection (c) directs the trial court
to determine the issue by a preponderance of the evidence, out of the jury’s presence, in a pretrial
hearing where practicable. TEX. CODE CRIM. PROC. art. 38.49.
BROWN ― 3
unavailable. In my view the court of appeals erred to find this part of Appellant’s complaint
to be forfeited. Brown v. State, No. 06-19-00082-CR, 2019 WL 6334707, at *3 n.5 (Tex
App.—Texarkana Nov. 27, 2019) (mem op., not designated for publication). When it
comes to Sixth Amendment confrontation issues, this Court has said, on more than one
occasion (while sometimes analogizing to the rules regarding hearsay), that a defendant’s
initial Confrontation Clause objection shifts the burden to the State to show why its out-of-
court testimonial statement should be admitted despite the fact that the defendant cannot
confront the declarant in court. See, e.g., Vinson v. State, 252 S.W.3d 336, 340 & n.15 (Tex.
Crim. App. 2008); De La Paz v. State, 273 S.W.3d 671, 680–81 (Tex. Crim. App. 2008);
cf. Cofield v. State, 891 S.W.2d 952, 954 (Tex. Crim. App. 1994) (“Since appellant
preserved error by raising an objection to the hearsay, the burden then became the State’s
to show that the evidence was admissible pursuant to some exception to the hearsay rule.”).
The defendant need not object again when the State fails to satisfy its entire burden of
production.
Like the Court does today, I would vacate the judgment of the court of appeals—
but I would do so for a different reason than the Court does today. I would uphold the court
of appeals’ judgment with respect to the issue of wrongdoing. But I would remand to the
court of appeals to consider whether Hutzelman was, in fact, unavailable. The court of
appeals may yet affirm the trial court’s judgment should it conclude that Hutzelman was
in fact unavailable, or that her out-of-court statements were not testimonial. Should it
instead conclude that the trial court erred because Hutzelman was available and her out-of-
court statements were testimonial, the court of appeals should then address whether
Appellant was harmed by the admission of those statements into evidence.
BROWN ― 4
FILED: March 3, 2021
PUBLISH