No. 05-03-01637-CR
Opinion issued May 3, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-49929-VS. Affirmed.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
Opinion By Justice WHITTINGTON.
Roberto Mancilla appeals his conviction for possession with intent to deliver four hundred grams or more of methamphetamine. See Tex. Health Safety Code Ann. §§ 481.102(6), 481.112(a), (f) (Vernon 2003 Supp. 2004-05). After the jury found appellant guilty, the trial judge assessed punishment at twenty years' confinement. In two points of error, appellant claims we must reverse his conviction because the trial judge erred in allowing certain evidence and submitting an incorrect jury charge. We affirm the trial court's judgment.
Background
Police informant Consuelo Jimenez contacted Officer Tim Robbins and told him that another police informant, Alvaro Flores (known as Paulina), was going to talk to a man named "Ivan" about buying four pounds of methamphetamine, or "ice." Paulina met Ivan who was accompanied by appellant. Ivan told Paulina appellant was his right hand man and that appellant was always with him. Ivan also agreed to sell her ice. They arranged for the drug buy to take place in the parking lot of the Sam's Club on Park Lane in Dallas. Paulina notified Officer Robbins of the pending transaction. After police set up surveillance and wired both informants with microphones, Paulina and Consuelo met appellant and Fernando Morales in the Sam's Club parking lot on March 26, 2003. Although police anticipated Ivan would be there, he did not appear. Nevertheless, appellant and Flores arrived in the same truck Ivan had used during the previous meeting with Paulina. Appellant tried to persuade Paulina and Consuelo to go to a nearby apartment to conclude the deal, but they refused. Consuelo talked to Ivan on the phone who indicated "they" were going to get the drugs and take them to the parking lot. Flores left, returning shortly thereafter with four pounds of methamphetamine. Appellant and Flores were arrested and later charged with possession with intent to deliver four hundred grams or more of methamphetamine. Confrontation Clause
In his first point of error, appellant contends the trial judge erred in permitting Paulina to testify about what Ivan had said to her during their conversation in appellant's presence. Appellant claims Ivan's statements were testimonial and, therefore, his right to cross-examine and confront Ivan was violated. We disagree. In all state and federal criminal prosecutions, the accused has a right, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, "to be confronted with the witnesses against him." U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36, 42 (2004); Pointer v. Texas, 380 U.S. 400, 406 (1965) (applying the Sixth Amendment to the States); Lee v. State, 143 S.W.3d 565, 569 (Tex.App.-Dallas 2004, pet. filed). In Crawford, the Supreme Court stated that testimonial hearsay evidence is inadmissible under the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68. Testimonial statements include police interrogations and "prior testimony at a preliminary hearing, before a grand jury, or at a former trial." Crawford, 541 U.S. at 68. These statements are testimonial because they are ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, . . . extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, . . . statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Crawford, 541 U.S. at 51-52. See Wiggins v. State, 152 S.W.3d 656, 659 (Tex.App.-Texarkana 2004, pet. ref'd) (stating that testimonial statements "all involve a declarant's knowing responses to structured questioning in an investigative environment or courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings"). Although appellant claims Ivan's statements to Paulina are testimonial statements, we disagree. The statements involve discussions of both appellant's and Ivan's involvement in illegal drug trade and were made during a meeting to arrange the sale of illegal contraband. This is clearly not a setting which "would lead an objective witness reasonably to believe that the statement would be available" for later judicial proceedings. See Crawford, 541 U.S. at 52; Wiggins, 152 S.W.3d at 659. Because the statements are nontestimonial, Crawford does not apply. See Woods v. State, 152 S.W.3d 105, 114 (Tex.Crim.App. 2004) (because co-defendant's statements were nontestimonial in nature, the "new rule articulated in Crawford is not applicable to this case."), petition for cert. filed, No. 04-9190 (Mar. 15, 2005). In his brief, appellant argues that, even if we conclude Ivan's statements were nontestimonial, we must nevertheless analyze the admission of this evidence under the standard enunciated in Ohio v. Roberts, 448 U.S. 56, 66 (1980), and reverse his conviction. Although we question the continuing viability of the Ohio v. Roberts standard, even if we address his claim under that standard, we would overrule his point of error. Under Ohio v. Roberts, a hearsay statement was admissible if it bore sufficient "indicia of reliability." Roberts, 448 U.S. at 66. A hearsay statement is per se reliable if it falls within a "firmly rooted" exception to the hearsay rule. White v. Illinois, 502 U.S. 346, 356 (1992). Co-conspirator statements are "recognized as a firmly rooted hearsay exception." Wiggins, 152 S.W.3d at 660 (citing Bourjaily v. United States, 483 U.S. 171, 183 (1987) and Bailey v. State, 804 S.W.2d 226, 231 (Tex.App.-Amarillo 1991, no pet.)); see United States v. Inadi, 475 U.S. 387, 395-96 (1986) ("co-conspirator statements derive much of their value from the fact that they are made in a context very different from trial, and therefore are usually irreplaceable as substantive evidence. Under these circumstances, 'only clear folly would dictate an across-the-board policy of doing without' such statements."). At issue in this case are Ivan's statements that (i) he could get Paulina methamphetamine or ice, (ii) appellant was his "right hand," and (iii) appellant was always with him. Ivan's statements were admissible as co-conspirator statements. Because co-conspirator statements fall within a firmly rooted hearsay exception, we need not conduct an independent inquiry into reliability. See United States v. Tom, 330 F.3d 83, 93 (1st Circuit 2003) ("We need not conduct an independent inquiry into reliability when the evidence falls within a firmly rooted hearsay exception; the coconspirator exception to the hearsay rule is such a firmly rooted exception."); see also United States v. Reyes, 362 F.3d 536, 541 (8th Circuit 2004) ("[T]he Confrontation Clause does not give the defendant the right to cross-examine a person who does not testify at trial and whose statements are introduced under the co-conspirator hearsay exclusion."), cert. denied, 124 S. Ct. 2926 (2004). Because Ivan's statements were nontestimonial and were admissible under the Ohio v. Robert standard, we cannot conclude the trial judge erred in allowing Paulina's testimony. We overrule appellant's first point of error. Jury Charge
In his second point of error, appellant seeks reversal because of a purported error in the jury charge. Under this point, appellant contends the language in the application paragraph on the law of parties was an improper comment on the weight of the evidence because it told the jury he acted as a party instead of asking the jury whether he did so. We disagree. In reviewing a claim of jury charge error, we first decide whether error exists in the jury charge. If it exists, we then determine whether the error caused the defendant to suffer sufficient harm that it requires reversal. See Hutch v. State, 922 S.W.2d 166, 170-71 (Tex.Crim.App. 1996); Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim.App. 1994); Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g). If, as in this case, no objection is made to the charge, the defendant can obtain reversal only if the error caused egregious harm. See Almanza, 686 S.W.2d at 171. "Egregious harm is a difficult standard to prove and such a determination must be done on a case-by-case basis." Hutch, 922 S.W.2d at 171. When conducting a harm analysis, we may consider (i) the charge itself, (ii) the state of the evidence including contested issues and the weight of the probative evidence, (iii) arguments of counsel, and (iv) any other relevant information revealed by the record of the trial as a whole. Bailey v. State, 867 S.W.2d 42, 43 (Tex.Crim.App. 1993). The jury charge in criminal trials includes an abstract portion, defining concepts and terms, as well as application paragraphs, applying the law to the facts and asking the jury ultimate guilt/innocence questions. See Plata v. State, 926 S.W.2d 300, 302-03 (Tex.Crim.App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234, 239 (Tex.Crim.App. 1997). When a defendant is tried under a vicarious criminal responsibility theory, the application paragraph must either specify all conditions that must be met for conviction on that basis or refer to instructions in the abstract portion pertaining to criminal responsibility for another's conduct. See Plata, 926 S.W.2d at 304 ("As in other contexts, a charge is adequate for this purpose only if it either contains an application paragraph specifying all of the conditions to be met before a conviction under such theory is authorized, or contains an application paragraph authorizing a conviction under conditions specified by other paragraphs of the jury charge to which the application paragraph necessarily and unambiguously refers, or contains some logically consistent combination of such paragraphs.") In this case, the charge stated A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. * * *
[I]f you find from the evidence beyond a reasonable doubt that on or about the 26th day of March. a.d., 2003, in Dallas County, Texas, [appellant] acted as a party with the intent to promote or assist ivan and/or fernando morales in the commission of the offense, if any, he solicited, encouraged, directed, aided, or attempted to aid ivan and/or fernando morales to knowingly possess with intent to deliver a controlled substance, namely: methamphetamine, in an amount by aggregate weight, including any adulterants or dilutants of 400 grams or more, then you will find [appellant] guilty of the offense of possession with intent to deliver a controlled substance, and so say by your verdict. Appellant contends the language in the application paragraph "tells the jury that appellant acted as a party instead of asking the jury to decide for itself whether appellant was a party" because the words "in that" were deleted after the "if any" language. In so arguing, appellant disregards the language in bold which, when read in context and in conjunction with the abstract portion, clearly instructs the jury to convict only if the jurors find from the evidence appellant acted as a party in an offense, if any. Thus, the application portion of the charge instructs the jurors to convict appellant as a party only if they find beyond a reasonable doubt that (i) an offense was committed and (ii) appellant acted as a party, i.e., with the intent to promote or assist the actors, in the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid Ivan or Morales. The deletion of the phrase "in that" does not change the instruction to authorize appellant's conviction for simply promoting or assisting the other actors without soliciting, encouraging, directing, aiding, or attempting to aid them. We overrule appellant's second point. We affirm the trial court's judgment.