No. 05-07-01567-CR
Opinion Filed July 11, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Criminal Court 2, Dallas County, Texas, Trial Court Cause No. MB0719767B.
Before Justices MOSELEY, FRANCIS, and LANG.
Opinion By Justice LANG.
Following a jury trial, Corey Waters was convicted of criminal trespass and punishment was set at twenty days' confinement and a fine of $100. Appellant presents three issues on appeal. In his first issue, appellant contends he was denied his right to confront and cross-examine the complainant in violation of the Sixth Amendment to the United States Constitution. In his second and third issues, appellant contends the evidence is legally and factually insufficient to support his conviction because he had an ownership interest in the property on which he was convicted of trespassing. For the reasons below, we resolve appellant's three issues against him. The judgment of the trial court is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Rodney Mitchell, a DeSoto police officer, testified at trial that at about 6 p.m. on September 8, 2007, as he was in his squad car in the front parking lot of the De Soto police station downloading video, he was approached by the complainant, Kimberly Hillard. Hillard told Mitchell appellant was in her car and she wanted him out of the vehicle. Mitchell asked Hillard about the nature of the relationship between her and appellant. According to Mitchell, Hillard said appellant was her child's father. Mitchell testified Hillard said she had been driving appellant to his home after a visit to her residence and he had started using profanity, at which point she had told appellant she wanted him to get out of her car. Hillard told Mitchell that when appellant had refused to leave the car, she had driven to the police station to seek help. Mitchell stated Hillard "appeared to be mad," but was not crying or yelling. Mitchell testified Hillard repeatedly told appellant, "I will call somebody to pick you up." Mitchell testified he asked Hillard about the ownership of the vehicle. According to Mitchell, Hillard told him she was the owner of the car and it was registered in her name. Mitchell testified, "After running the plates on the tag it returned to a Miss Hillard." Mitchell approached appellant, who was sitting in the front passenger seat of the car, and repeatedly asked appellant to leave the vehicle, but appellant did not comply. Mitchell testified he then told appellant, "At this time you're under arrest. Get out of the vehicle." Mitchell stated appellant raised his voice and appeared agitated. Appellant informed Mitchell he wanted to speak to Mitchell's "supervisors." Mitchell called for backup because he was concerned he would not be able to arrest appellant safely. De Soto police officer Dwayne Lyons testified he responded to Mitchell's request for backup. When Lyons arrived in the parking lot, he saw appellant sitting in the passenger seat of a vehicle and Hillard standing outside the vehicle. After Mitchell told Lyons what had transpired, Lyons asked if appellant was under arrest, and Mitchell answered that he was. Lyons walked over to the driver's side of the car, removed his Taser from its holster, and turned the Taser on. Lyons testified he leaned into the car and told appellant to get out of the car. Appellant said, "Okay, okay," and exited the car. The officers took appellant into custody. Appellant was charged with the offense of criminal trespass. The information alleged in relevant part that appellant intentionally and knowingly remained on "property of another, namely: KIMBERLY HILLARD" without her effective consent after she had orally communicated to him to depart. (emphasis original). At trial, appellant pleaded not guilty. Before any testimony was presented, a hearing was held at the State's request, outside the presence of the jury, to determine the admissibility of statements made to Mitchell during the incident at issue by Hillard, who was not present at trial. Appellant argued admission of such statements would violate his Sixth Amendment rights. At the conclusion of the hearing, the trial court ruled Hillard's out-of-court statements to Mitchell were admissible. Appellant testified at trial that it was his understanding he and Hillard had a common law marriage, but their marriage was not registered with the state. According to appellant, at the time of the incident at issue, he and Hillard were living together. Appellant testified both of them owned the vehicle involved in the incident, although it was probably registered in Hillard's name. Appellant stated he helped make payments on the car and paid for the car's maintenance. He offered into evidence a copy of an insurance card that listed him as an insured driver for the car. Appellant testified that on the night of the incident giving rise to this case, he and Hillard began arguing while she was driving him to a friend's house. Appellant testified Hillard asked him to leave the car and he refused. Appellant stated he told Mitchell he and Hillard "both was together" and testified, "I tell him both our vehicle [sic]." Mitchell was recalled by the State to testify in rebuttal. Mitchell testified it was his understanding the vehicle at issue belonged to Hillard. According to Mitchell, appellant did not say anything that would indicate otherwise. After the jury found appellant guilty, punishment was assessed by the trial court at twenty days' confinement and a fine of $100. Appellant timely filed this appeal. II. RIGHT TO CONFRONT AND CROSS-EXAMINE COMPLAINANT
In his first issue, appellant contends he was denied his right to confront and cross-examine Hillard in violation of the Sixth Amendment to the United States Constitution. The State asserts the trial court properly admitted Hillard's out-of-court statements to Mitchell because the record shows such statements were nontestimonial. A. Standard of Review
The proper standard of review of the issue before us is a hybrid one, both deferential and de novo. Mason v. State, 225 S.W.3d 902, 906-07 (Tex.App.-Dallas 2007, pet. ref'd). "Although we defer to a trial court's determination of historical facts and credibility, we review a constitutional legal ruling, i.e. whether a statement is testimonial or nontestimonial, de novo." Wall v. State, 184 S.W.3d 730, 742 (Tex.Crim.App. 2006). B. Applicable Law
The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. U.S. Const. amend. XIV; Crawford v. Washington, 541 U.S. 36, 42 (2004). In Crawford, the United States Supreme Court held testimonial out-of-court statements by a witness absent from trial are barred by the Confrontation Clause unless (1) the witness is unavailable, and (2) the defendant has had a prior opportunity to cross-examine the witness. Crawford, 541 U.S. at 59; see also Wall, 184 S.W.3d at 736; Mason, 225 S.W.3d at 907. The Crawford Court stated that the term "testimonial" applies "at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Crawford, 541 U.S. at 68. In Davis v. Washington, 547 U.S. 813, 822 (2006), the Supreme Court sought to clarify the manner in which a court should determine if a statement is testimonial or nontestimonial based upon the circumstances when it was made. Specifically, the Davis Court held: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Id. The Davis Court noted a non-exhaustive list of factors to consider when determining whether statements were made during an ongoing emergency: (1) whether the situation was still in progress; (2) whether the questions sought to determine what is presently happening as opposed to what has happened in the past; (3) whether the primary purpose of the interrogation was to render aid rather than to memorialize a possible crime; (4) whether the questioning was conducted in a separate room, away from the alleged attacker; and (5) whether the events were deliberately recounted in a step-by-step fashion. Vinson v. State, 252 S.W.3d 336, 339 (Tex.Crim.App. 2008) (citing Davis, 547 U.S. at 829-30). In addition, the Davis Court stated, "Although we necessarily reject the . . . implication that virtually any 'initial inquiries' at the crime scene will not be testimonial, we do not hold the opposite-that no questions at the scene will yield nontestimonial answers." Davis, 547 U.S. at 832 (emphasis original) (citations omitted). The proponent of evidence ordinarily has the burden of establishing the admissibility of the proffered evidence. See Marquez v. State, 921 S.W.2d 217, 222-23 (Tex.Crim.App. 1996); Vinson, 252 S.W.3d at 340. If no objection is made, the evidence is generally deemed admissible. Vinson, 252 S.W.3d at 340. However, once an objection is made, the proponent must demonstrate that the proferred evidence overcomes the stated objection. Id. (citing Idaho v. Wright, 497 U.S. 805, 816 (1990)). C. Application of Law to Facts
Appellant contends the admission of Hillard's out-of-court statements through Mitchell violated appellant's right to confrontation because "the statements were given in response to investigative questioning by the officer, making the statements testimonial, and there was no showing that the complainant was unavailable." The State argues Hillard's statements were not given to "establish or prove past events potentially relevant to later criminal prosecution," but so that Mitchell could assist Hillard with an ongoing emergency. Therefore, the State contends, Hillard's statements were nontestimonial. The State asserts such a determination is supported by the following factors: (1) Hillard initiated the conversation with Mitchell by approaching him outside the police station; (2) Hillard's statements to Mitchell were made for the sole purpose of getting appellant out of her car; and (3) Hillard was not responding to tactically structured police questioning, but rather seeking help from a police officer in getting appellant out of her car. Pursuant to Vinson, we base our analysis of whether Hillard's statements were made during an ongoing emergency on the factors identified in Davis. Id. at 339; see also Davis, 547 U.S. at 829-30. With regard to the first Davis factor, the record shows that at the time Mitchell made the inquiries at issue, appellant was in Hillard's vehicle and had refused to leave. Thus, the "situation was still in progress" when Mitchell questioned Hillard. See Vinson, 252 S.W.3d at 339. As to the second Davis factor, whether the questions sought to determine what was "presently happening," Mitchell testified his inquiries to Hillard were made before he approached appellant and asked him to leave the car. According to Mitchell, he asked Hillard about the nature of the relationship between her and appellant to determine whether appellant had a legal right to be in the car. Mitchell testified that if Hillard and appellant were "married or anything there's really nothing we can do, because that person would also have as much right in the vehicle as the driver itself or the owner of the vehicle." The record shows Mitchell's questions sought to determine what was "presently happening." See id. The third Davis factor is "whether the primary purpose of the interrogation was to render aid rather than to memorialize a possible crime." Id. According to Mitchell's testimony during the pretrial hearing, his intention in approaching appellant was not to arrest appellant, but "just to ask [appellant] to get out of the vehicle." In addition, Mitchell testified Hillard did not make her statements with the purpose of going to trial and testifying against appellant. Mitchell stated Hillard told him, "I just want him out of the vehicle. I'll call a family member or someone to come pick him up." Accordingly, the record indicates the primary purpose of Mitchell's questions was to render aid to Hillard. With regard to the fourth Davis factor, whether the questioning was conducted in a separate room, away from the site, Mitchell's questioning of Hillard was conducted at the scene of the incident with appellant present. See id. Finally, as to the fifth Davis factor, whether the events were deliberately recounted in a step-by-step fashion, Mitchell testified at the pretrial hearing that only after inquiring as to how he could help Hillard and as to the nature of her relationship with appellant did he ask her to clarify the events that had led to the situation. See id. On this record, we conclude the statements made by Hillard to Mitchell were nontestimonial in nature. See Davis, 547 U.S. at 828 (out-of-court statements made by witness to 911 emergency operator were nontestimonial because primary purpose of interrogation was to enable police assistance to meet ongoing emergency); Vinson, 252 S.W.3d at 339-40 (before appellant had been secured in patrol car, trial court could rationally have concluded any interrogation of witness was nontestimonial). Therefore, admission of Hillard's statements did not violate the Confrontation Clause of the Sixth Amendment. See Vinson, 252 S.W.3d at 342. Appellant's first issue is decided against him. III. LEGAL AND FACTUAL SUFFICIENCY OF EVIDENCE
In his second and third issues, appellant contends the evidence is legally and factually insufficient to support his conviction for criminal trespass because he had an ownership interest in the vehicle at issue. We address appellant's second and third issues together. A. Standard of Review
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Reversal for factual insufficiency occurs only when: (1) the evidence supporting the verdict is so weak the verdict seems clearly wrong and manifestly unjust; or (2) there is some objective basis in the record that shows the great weight and preponderance of evidence contradicts the jury's verdict. Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417. When conducting a factual sufficiency review, an appellate court considers all of the evidence, both direct and circumstantial. See Marshall, 210 S.W.3d at 625. A reviewing court is required to afford due deference to the jury's findings in a factual sufficiency review, but may substitute its judgment for the jury's credibility and weight determinations "to a very limited degree." Watson, 204 S.W.3d at 416-17; see also Roberts, 220 S.W.3d at 524; Marshall, 210 S.W.3d at 625. B. Applicable Law
Section 30.05(a)(2) of the Texas Penal Code provides in relevant part that a person commits criminal trespass if he enters or remains on or in property, including an aircraft or other vehicle, of another without effective consent, and he received notice to depart, but failed to do so. Tex. Penal Code Ann. § 30.05(a)(2) (Vernon Supp. 2007). C. Application of Law to Facts
Appellant contends the State failed to meet its burden to prove he entered or remained in a car he did not own or in which he did not have an ownership interest. Further, appellant asserts, "the State failed to prove that the complainant had a greater right of possession of the vehicle than did Appellant." Therefore, appellant contends, the State failed to prove, as a matter of law, that appellant entered or remained on another's property without effective consent. In addition, appellant asserts the great weight and preponderance of the evidence contradicts the verdict because: (1) there was no evidence appellant did not have an ownership interest or did not have a greater right of possession in the vehicle than complainant did, and (2) appellant's evidence that he and the complainant had a common law marriage was uncontradicted. The State argues the evidence is legally and factually sufficient to support appellant's conviction because Mitchell's testimony shows Hillard had a greater right to possession of the car than appellant, and appellant's testimony does not show he had an equal ownership interest in the car. Further, the State argues, the record shows appellant is not credible. The information alleged appellant: did unlawfully then and there intentionally and knowingly enter and remain on property of another, namely: KIMBERLY HILLARD, hereinafter called complainant, without the effective consent of complainant, and the defendant had received notice to depart, to-wit: the complainant had by oral communications told the defendant to depart, and the defendant thereafter failed to depart. (emphasis original). Under the Texas Penal Code, "another" means "a person other than the actor." Tex. Penal Code Ann. § 1.07(a)(5) (Vernon Supp. 2007). Appellant cites that definition to support his assertion that the State "was required to prove that Appellant entered and remained on property other than (i) his own or (ii) property in which he had an ownership interest." The State asserts the penal code defines "owner" as a person who "has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor." Id. § 1.07(a)(35). The State argues that in criminal trespass cases where the State alleges ownership, "the Court of Criminal Appeals has indicated that requiring proof of ownership imposes a greater burden upon the State than proving 'on the property of another.'" See State v. Kinsey, 861 S.W.2d 383, 385 (Tex.Crim.App. 1993). Therefore, according to the State, although ownership was not alleged in this case, "proof that Hillard had a greater right to possession of the car than appellant should be sufficient to support the conviction for criminal trespass." The Texas Court of Criminal Appeals has not decided whether the definition of ownership under section 1.07(a)(35) of the Texas Penal Code applies in cases where, as here, the information does not specifically allege ownership. Bader v. State, 15 S.W.3d 599, 607 (Tex.App.-Austin 2000, pet. ref'd). Further, the court of criminal appeals has "specifically reserved the question of whether a defendant can trespass on property to which they have lesser title to than a complainant." Kinsey, 861 S.W.2d at 385; Langston v. State, 855 S.W.2d 718, 721 (Tex.Crim.App. 1993). However, we need not resolve those issues to decide this case. Rather, we conclude the evidence is legally and factually sufficient to support appellant's conviction because the jury could have rationally found from the evidence that appellant had no ownership interest in the vehicle at issue. Mitchell testified he questioned Hillard regarding her relationship with appellant in order to determine whether appellant had a right to remain in the car. According to Mitchell, Hillard said appellant was her daughter's father and that she was the owner of the car. Mitchell testified he checked the car's registration and determined the car was registered to Hillard. According to Mitchell, appellant did not tell Mitchell he owned the car. Appellant testified he helped pay for the car, but stated he could only drive the car when Hillard did not need it. In addition, although appellant was listed on the insurance card as an insured driver, Hillard was listed as the owner of the policy. Appellant argues he and Hillard jointly owned the car because he and Hillard were married. See Brooks v. Sherry Lane Nat'l Bank, 788 S.W.2d 874, 876 (Tex.App.-Dallas 1990, no writ) (property possessed by either spouse during marriage is presumptively community property). Moreover, appellant contends the evidence that he and Hillard had a common law marriage was "uncontradicted." However, although appellant testified it was his "understanding" that he and Hillard had a common law marriage, he did not offer testimony or other evidence showing their relationship met the legal requirements for a common law marriage. See Tex. Fam. Code Ann. § 2.401 (Vernon 2006) (proof of informal marriage is shown if "man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married"). Further, although appellant testified he and Hillard lived together, Mitchell testified Hillard told him she was driving appellant to his home after a visit to her residence on the night of the incident. The jury is the exclusive judge of the credibility of witnesses and the weight to be given their testimony, and "reconciliation of conflicts in the evidence is within the exclusive province of the jury." Margraves, 34 S.W.3d at 919. The jury may choose to believe some testimony and disbelieve other testimony. Id. Viewing the evidence in this case in the light most favorable to the verdict, we conclude the jury could have rationally found beyond a reasonable doubt that appellant had no ownership interest in the car at issue and remained in the car without consent after being asked to depart. See Jackson, 443 U.S. at 319; Vodochodsky, 158 S.W.3d at 509; Lane, 151 S.W.3d at 191-92; see also Tex. Penal Code Ann. § 30.05(a)(2). Further, viewing all the evidence in a neutral light, we cannot say that the great weight and preponderance of evidence contradicts the jury's verdict or that the evidence supporting the verdict is so weak that the verdict seems clearly wrong or manifestly unjust. See Roberts, 220 S.W.3d at 524. Therefore, we conclude the evidence is both legally and factually sufficient to support appellant's conviction. Appellant's second and third issues are decided against him. IV. CONCLUSION
We conclude the out-of-court statements complained of by appellant were nontestimonial in nature and, therefore, admission of such statements did not violate the Confrontation Clause of the Sixth Amendment. In addition, we conclude the evidence presented at trial is both legally and factually sufficient to support appellant's conviction for criminal trespass. We decide appellant's three issues against him. The trial court's judgment is affirmed.