Court of Appeals of Texas, Sixth District, Texarkana
Submitted: April 26, 2019
Appeal from the 336th District Court Fannin County, Texas
Trial Court No. CR-17-26337.
Morriss, C.J., Burgess and Stevens, JJ.
K. Burgess, Justice.
Harold Moon was convicted by a Fannin County jury of bail
jumping and failure to appear and was sentenced to six years
and six months' imprisonment. On appeal, Moon complains
that the trial court violated his right to confront witnesses
against him when it admitted testimony from another
proceeding to be read in this proceeding. Because we find no
error by the trial court in admitting this testimony, we
affirm its judgment.
was released on bond from the Fannin County Jail after being
arrested and detained for aggravated assault of a peace
officer, a first-degree felony. The bond was issued
conditioned on Moon appearing in court as required by the
trial court. When the aggravated assault charges came to
trial in May 2017, Moon appeared for jury selection and the
first day of the State's case. However, when the case was
called the next morning, Moon's attorney informed the
trial court that Moon had fallen the night before and that he
had not been able to awaken Moon that morning. When it was
later determined that Moon had been taken to the Texoma
Medical Center in Denison and that at noon Moon was still
unable to communicate, the trial court declared a mistrial.
month later, the State re-tried Moon on the aggravated
assault charge. After hearing the evidence, the jury found
Moon guilty of aggravated assault of a peace officer as
charged in the indictment. The trial then proceeded to the
punishment phase where Moon's estranged wife, Lori,
weeks after the retrial, Moon was indicted on the bail
jumping and failure to appear charge in this case. Shortly
before the trial of this case, Lori died of cancer. During
the guilt/innocence stage of the trial of this case, over
Moon's objection, the trial court admitted that portion
of Lori's testimony from the aggravated assault trial set
forth in footnote 3. Moon argues on appeal that the
introduction of this testimony violated his Sixth Amendment
right to confront the witnesses against him.
Standard of Review
review a trial court's decision to admit or exclude
evidence for an abuse of discretion. Martinez v.
State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Abuse
of discretion occurs if the decision is "so clearly
wrong as to lie outside the zone within which reasonable
people might disagree." Taylor v. State, 268
S.W.3d 571, 579 (Tex. Crim. App. 2008); Montgomery v.
State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op.
on reh'g). However, the trial court's discretion is
constrained by the defendant's constitutional
protections, including the Confrontation Clause, which
guarantee him "a meaningful opportunity to present a
complete defense." See Holmes v. South
Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v.
Kentucky, 476 U.S. 683, 690 (1986) (quoting
California v. Trombetta, 467 U.S. 479, 485 (1984))).
A trial court's "[m]isapplication of the law to the
facts of a particular case is a per se abuse of
discretion." State v. Ballard, 987 S.W.2d 889,
893 (Tex. Crim. App. 1999).
Confrontation Clause states, "In all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him." U.S. Const.
amend. VI. The United States Supreme Court has held that,
"[w]here testimonial evidence is at issue," such as
testimony from a prior proceeding, the Sixth Amendment
requires the unavailability of the witness and a prior
opportunity for cross-examination. Crawford v.
Washington, 541 U.S. 36, 68 (2004). In this appeal, Moon
does not contend that Lori was available, or that he did not
have a prior opportunity to cross-examine her at the prior
proceeding. Rather, Moon argues that, to satisfy the
Confrontation Clause, the prior testimony cannot be used
unless the testimony was from the same case,  citing Mattox
v. United States, 156 U.S. 237 (1895). We disagree.
involved the retrial of a murder case. In the second trial,
the government read into evidence the transcript of the
testimony of two witnesses in the first trial who had since
died. Id. at 240. On appeal, Mattox contended that
this was a violation of the Confrontation Clause. Speaking of
the common law as it existed at the time the Confrontation
Clause was drafted, the Supreme Court noted that "the
authority in favor of the admissibility of such testimony,
where the defendant was present either at the examination of
the deceased witness before a committing magistrate, or upon
a former trial of the same case, is overwhelming."
Id. at 241. In addressing the circumstances of the
case before them, the Court held that the Confrontation
Clause would provide the defendant the same guarantee and
explained that "[t]he substance of the constitutional
protection is preserved to the [defendant] in the advantage
he has once had of seeing the witness face to face, and of
subjecting him to the ordeal of a cross-examination."
Id. at 244. Although the narrow holding in
Mattox affirmed that the Confrontation Clause
allowed the admissibility of the testimony at a former trial
or hearing of the same case of a deceased witness when the
defendant had an opportunity to cross-examine her, the Court
did not address whether the prior testimony could arise from
a different case. Thus, Mattox does not support
none of the cases cited by Moon support his contention that
the prior testimony must have been given in the same
case. And none of the other cases cited by Moon
require the witness to be deceased, or require the testimony
to be from a hearing or former trial in the same case.
Rather, they only require that the witness be unavailable and
that the defendant had an opportunity to cross-examine the
witness. In Crawford, the Court reviewed the
historical record and its own Confrontation Clause
jurisprudence. Crawford, 541 U.S. at 53-59. It
concluded that the Constitution's framers understood the
Confrontation Clause as prohibiting "admission of
testimonial statements of a witness who did not appear at
trial unless he was unavailable to testify and the defendant
had had a prior opportunity for cross-examination."
Id. at 53-54. The Court also concluded that its own
jurisprudence had remained faithful to that understanding.
Id. at 59. We find nothing in Crawford that
supports Moon's contention that the Confrontation Clause
requires the prior testimony to have been given in the same
case, it is undisputed that Lori was unavailable and that
Moon had the opportunity to cross-examine her at the
aggravated assault trial. Therefore, we find that the trial
court did not violate Moon's right to confront the
witnesses against him when it admitted Lori's testimony
from the aggravated assault trial. Since requirements of the
Confrontation Clause were met, we find that the trial court
did not abuse its discretion in admitting the testimony. We
overrule Moon's sole issue.
reasons stated, we affirm the trial court's judgment.
See Tex. Penal Code Ann.
§ 38.10(a) (West 2016).
See U.S. Const. amend.
As relevant to this case, Lori
A. [By Lori] He came by to leave me some papers; some
papers for taxes.
Q. [By the State] Just kind of showed up unannounced;
isn't that ...