Willover v. State

JENNINGS, Justice,

dissenting from the denial of en banc rehearing.

The majority extends Texas Rule of Evidence 801(e)(2) “party” status from law enforcement officials, who are actually agents of the State, to crime victims, who are not. I respectfully dissent.

The main purpose in excluding hearsay evidence is its inherent unreliability in assisting the factfinder in ascertaining the truth. There are essentially four “ ‘hearsay dangers’ — faulty perception, faulty memory, accidental miscommunication, and insincerity.” Olin Guy Wellborn III & Cathleen C. Herasimchuk, Article VIII: Hearsay, 80 Hous.L.Rev. 897, 898 (1998 Texas Rules of Evidence Handbook) (emphasis added) (footnote omitted). We, therefore, exclude from evidence various statements not presented under controlled courtroom conditions.

An admission by a party opponent is not considered hearsay and is not excluded because “the party is ‘estopped’ from making the ironic claim that his own remarks are untrustworthy unless made under the ideal testimonial conditions.” Wellborn & Herasimchuk, Article VIII: Hearsay, 30 Hous.L.Rev. 897, 899 (emphasis added); see Godwin v. State, 899 S.W.2d 387, 390 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd).

The majority believes the State is merely “technically” or “nominally” a party. At first glance, it might appear a complaining witness, like a plaintiff, would fit into this category of being a “party.” However, unlike in civil matters, in which a plaintiff and her agents are clearly parties with control, a complaining witness, especially in a sexual assault case, is at the mercy of the criminal justice system.

Criminal cases are inherently different from civil cases. A party in a civil case has control over the case, but a complaining witness does not. A plaintiff can decide when and whom to hire as counsel and, with the advice of counsel who represents her, when and how to initiate her case or settle it. A plaintiff has the ability to give input and make decisions regarding the development, prosecution, and presentation of her case. A complaining witness, especially a child, simply does not have this control.

In fact, crime victims are so different that the Texas Legislature statutorily en *686 acted certain “Crime victims’ rights.” Tex. Code CRIm.ProcAnn. art. 56.02 (Vernon Supp.2001). Acknowledging the very-weak position of crime victims in our criminal justice system, these basic rights include adequate protection, return of the victim’s property, and notice and information requirements. Id.

Criminal actions are brought “In the name and by authority of the State of Texas.” Tex.Code Crim.PROc.Ann. arts. 21.02, 21.21 (Vernon 1989). This is no mere legal fiction nor technicality. The prosecutor makes the charging decision, not the crime victim. The prosecutor represents the State, not the crime victim. Criminal cases are brought only after investigation by peace officers, prosecutors, and, in felony cases, grand juries, whose roles are clearly defined by statute. Tex. Code CRIm.PROC.Ann. arts. 2.01-2.26,19.01-19.42, 20.01-20.22 (Vernon 1977 & Supp. 2001).

A crime victim is neither an agent nor servant of the State, but simply a complaining witness, who has absolutely no control over when and how the case is brought and developed by the State. Sexual assault and family violence victims are often, unfortunately, very reluctant to come forward and initiate an investigation against a spouse, partner, parent, or other relative. Often, these sexual assault and family violence victims must be compelled by the State to give testimony against a person upon whom they completely depend. How can we deem a person in such a pathetic position, who does not want to be there, a “party”?

A sexual assault or family violence victim is often forced by unsympathetic social workers and investigators into situations in which she must choose between her safety or livelihood and telling the truth. She may be in a situation in which she must choose in an instant to trust a social worker whom she just met, rather than the abusive spouse or parent upon whom she may absolutely depend. Here, it would be ironic to allow statements made by victims, under often untrustworthy conditions, to obfuscate the truth.

To hold all complaining witnesses are “parties” under Texas Rule of Evidence 801(e)(2) will open a pandora’s box, weakening the controlled courtroom conditions that assist the fact finder in ascertaining the truth. The majority’s ruling will not only allow alleged contradictory statements of a complaining witness, but also any relevant alleged statements she made. A complaining witness should be subject only to proper impeachment as are other witnesses. Without the wisely crafted protection of the proper predicate required by Texas Rule of Evidence 613(a), it is not hard to imagine clever criminal defendants finding insincere friends to say, “The victim told me.... ”

Because the State, not the complaining witness, is in fact the party opponent of the accused and the complaining witness is not an agent of the State, out-of-court statements by the complaining witness should not be admissible against the State pursuant to Texas Rule of Evidence 801(e)(2). Owens v. State, 916 S.W.2d 713, 717-18 (Tex.App.-Waco 1996, no pet.); Halstead v. State, 891 S.W.2d 11 , 12-13 n. 1 (Tex.App.-Austin 1994, no pet.); see 2A Steven Goode et al., Texas PRACTICE: Courtroom Handbook on Texas Evidence 444 (2000).

The majority ruling will have the exact opposite effect in the courtroom of what we all desire; it will cloud the truth, not illuminate it. By holding all complaining witnesses are “parties” and eliminating the requirements of Texas Rule of Evidence 613(a), complaining witnesses may be subjected to unfounded hearsay statements and allegations, now deemed by this Court to be “admissions.” Therefore, rehearing en banc is necessary for this serious decision, and I respectfully dissent and further join Chief Justice Schneider in his dissent and Justice Taft in his two dissents.

*687 Justice TAFT dissented from denial of en banc consideration.

Chief Justice SCHNEIDER and Justice NUCHIA joined Justice TAFT’S opinion dissenting from the denial of en banc consideration.

Chief Justice SCHNEIDER dissented from the denial of en banc consideration.

Justices TAFT and NUCHIA joined Chief Justice SCHNEIDER’S opinion dissenting from the denial of en banc consideration.

The State moved for en banc rehearing.

A majority of the Justices of the Court did not vote to grant en banc rehearing.

See Tex.R.App. P. 49.7; Ex parte Wilson, 25 S.W.3d 932, 932-33 (Tex.App.-Houston [1st Dist.] 2000, pet. filed).

Justice TAFT, dissenting from the denial of en banc rehearing.

Chief Justice SCHNEIDER and Justices NUCHIA, BRISTER, and JENNINGS join Justice TAFT’S opinion dissenting from the denial of en banc rehearing. Justice BRISTER would also have joined all but Part C of Justice TAFT’S earlier opinion dissenting from the denial of en banc consideration.

Justice JENNINGS would also have joined Chief Justice SCHNEIDER’S and Justice TAFT’s earlier opinions dissenting from the denial of en banc consideration.

Justice JENNINGS, dissenting from the denial of en banc rehearing.

Chief Justice SCHNEIDER and Justices TAFT, NUCHIA, and BRISTER join Justice JENNINGS’S opinion dissenting from the denial of en banc rehearing.