Wednesday, February 01, 2006

Crawford and Bruton -- any relation?

I've gotten a couple of inquiries tonight -- and some others before -- about the relation of Crawford to Bruton. It seems to me that the two cases address issues along different dimensions. The question addressed by Crawford is when introduction of an out-of-court statement would violate the accused's confrontation rights. The Bruton problem, at least in its classic form, arises when there are co-defendants and introduction of a confession by one defendant would violate the confrontation rights of the other defendant but not those of the declarant. Bruton, in other words, assumes the answers to the substantive confrontation questions -- OK against one defendant, a violation against the other -- and then addresses the question of how to resolve that situation. Thus, it seems to me that Crawford and Bruton have very little to do with one another, except that Bruton problems are more likely to arise under Crawford than under the prior regime, because confrontation problems are recognized more often.

I am not particularly confident on this because I don't know a lot about Bruton. I'd welcome comments from anybody who has any insights or information to offer on this question. Please identify yourself!


Anonymous said...

A Bruton problem is, in effect, an interesting variation of the problem raised in the post immediately below (statement not offered for truth of matter). Both deal with the efficacy of jury instructions.

Bruton says that evidence of a confession is simply too powerful to follow the ususal presumption that a jury abides a limiting instruction (in that instance, to ignore the codefendant's confession when deliberating the defendant's guilt).

I realize that a limiting instruction wasn't given in Walter, but the court analyzes the problem as if one had been given; the statements weren't admitted for their truth but to provide "context" to Walter's admissions. Undoubtedly, had a limiting instruction been given to that effect the result would have been the same. (I haven't read Stewart, but assume from the post that it's to like effect.)

The result in Walter is problematic for the reasons suggested in your post. If the jury isn't told the evidence can't be given substantive effect, then how would it know to do something that obscure? And, if the case was tried on the theory that the evidence had substantive effect, then as a matter of due process how can it be affirmed on a different theory?

But both Bruton and Walter sorts of problems do, in my opinion, implicate Crawford analysis: statements from a non-testifying declarant who is unavailable. The fault line is efficacy of a limiting instruction, either to ignore altogether (Bruton) or to ignore truthfulness in preference to some specified "lesser" purpose (Walter)). Where the limiting instruction can be followed then Crawford is avoided, and where it can't then Crawford applies.

Anonymous said...

(from Andrew Fine)

Mr. Vinegrad's pronouncement is an oversimplification. Assuming that Roberts is eventually overruled regarding nontestimonial statements (a question that cannot be decided in Hammon or Davis, since it isn't before the Court), it's true that the introduction of a nontestifying accomplice's nontestimonial statement will not violate the Confrontation Clause. That doesn't mean the statement is admissible, however. It still has to pass muster under an exception to the hearsay rule. And it will be a rare statement that qualifies both as nontestimonial and as admissible hearsay.

The only sort of accomplice statement that may be non-testimonial post-Crawford is one made to a civilian witness, such as the statement in Cruz v. New York, 481 US 106. [I know that Prof. Friedman believes that many such statements to civilians should qualify as testimonial, but thus far, courts have refused to so hold.] But such statements very likely will not qualify as declarations against penal interest, because most if not all jurisdictions refuse to apply that exception with regard to portions of a declarant's statement that implicate persons other than himself. Conceivably, a catch-all hearsay exception could be invoked, but only if the statement is deemed particularly reliable.

If the nontestimonial statement is inadmissible hearsay against the defendant, Bruton would no longer govern, since there would be no Confrontation Clause violation. But its teaching regarding the ineffectuality of limiting instructions would still be pertinent. The devastating prejudice to the defendant that will result from the codefendant's accusation could not be erased from jurors' minds by telling them not to consider it.

Andrew Fine

Anonymous said...

First, Bruton and Crawford do overlap. The Bruton case is discussed in both Dutton v. Evans and Lee v. Illinois, where the Court made clear that it was "police confessions" being later admitted against a co-defendant at trial which was the primary concern.
Next, in response to the last comment, "it will be a rare statement that is both non-testimonial and falls within a hearsay exception," courts often admit statements against penal interest made by an accomplice to a close family member that inculpate an accused. Such statements are generally deemed non-testimonial, and the fact that they are made to an ally makes them reliable.
Finally, in response to Mr. Yermish's comment, "Crawford potentially bolsters the severance argument," I believe that Crawford mandates that the statement does not come in at all against the co-defendant(redacted or otherwise).

Anonymous said...

Recent Texas appellate victory based on Sixth Amendment plus Bruton objection at trial.
177 S.W.3d 486; Clay v. State (Tex.App.);

Page 486


In The Court of Appeals For The First District of Texas

NO. 01-03-01223-CR

May 19, 2005

On Appeal from the 262nd District Court Harris County, Texas

Trial Court Cause No. 953336


A jury found appellant, Willie Allen Clay, guilty of aggravated robbery and assessed punishment at 60 years' confinement and a $10,000 fine. In one issue, appellant contends that the trial court's admission into evidence of his accomplices' statements to police violated his Sixth Amendment right to confrontation. Since appellant's trial, the United States Supreme Court held in Washington v. Crawford that testimonial statements, such as the ones at issue in this case, are inadmissible. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004). The trial court did not have the benefit of Crawford when it, under the applicable law at that time, properly admitted the statements into evidence. Nevertheless, the admission of the statements was error. Because we cannot conclude beyond a reasonable doubt that the admission of the accomplices' statements did not contribute to the jury's finding that appellant was guilty of aggravated robbery, we hold that the error in admitting the statements was harmful error. For this reason, we reverse the judgment of the trial court and remand for further proceedings.


On June 22, 2003, Monica Duran, Marina Lopez, and several other friends went to a bar where their friend, the complainant, Amber Trevino, worked as a waitress. The group of friends left the bar at around 2:00 a.m. and returned to Monica's townhouse in a Montrose neighborhood of Houston. Amber remained at the bar to clean up but planned to join her friends after work at Monica's townhouse. When they arrived, the group of friends parked across the street from the townhouse. As they were parking, three men walked by the group's vehicle. The men watched the group as they parked. When the friends got out of the vehicle, the three men, who were about 10 feet away, turned and faced them. Fearing the men, the group hurried into the townhouse without incident.

Amber left work at around 3:00 a.m. and drove to join her friends. Amber parked her car down the street from Monica's townhouse. She got out of the car, carrying her purse and a large Armani bag. As she walked toward Monica's townhouse, Amber felt someone running up behind her. As she turned, a man hit her in the head with a nightstick. Two other men began kicking and hitting her with their fists. The last two men then grabbed Amber's bags and ran toward her car. The other man, who had struck her first, stayed and continued to beat Amber with the nightstick. He stopped hitting Amber only when a neighbor yelled, "Stop!"

As a result of the attack, Amber's scalp was split open, requiring staples. She also developed a blood clot in her leg from torn muscles due to the beating. The three men stole her purse, her Armani bag, and her car. Three days after the attack, on June 26, 2003, the police spotted Amber's Toyota Corolla going the wrong direction down a one-way street. Larry Monroe was driving the car. Appellant and Chad Ivy were passengers. Following a high-speed chase with police, the car hit a telephone pole. After the crash, the three men fled on foot from the vehicle but were apprehended hiding nearby. Monroe was arrested for driving a stolen vehicle and fleeing from the police. Ivy was arrested on an outstanding warrant. The police obtained identification from appellant and then released him.

Also on June 26, Amber identified appellant from a photo spread as the man who had beaten her with the nightstick. She also identified Monroe and Ivy as the other two participants in the robbery who took her bags. At trial, Amber again identified appellant as the assailant who struck her with the nightstick.

Marina Lopez also identified Monroe and Ivy in separate lineups. At trial, Marina identified appellant as one of the men that she saw on June 22, 2003, as she and her friends arrived at Monica's townhouse.

At trial, appellant contended that Amber's and Marina's identifications of him were not reliable. In sum, the defense argued that the area in which the attack occurred was poorly lit and that Amber did not have a sufficient opportunity to see appellant's face. The defense attacked Marina's credibility because she admitted that she had been drinking margaritas earlier that night. In response, the State elicited testimony from Amber and Marina that each was certain of her identification of appellant and that each had sufficient opportunity to see his face on the night of the robbery.

Sergeant John Clinton Jr. of the Houston Police Department testified for the State as the investigating officer on the case. Outside the presence of the jury, the State raised the issue of whether Sergeant Clinton could testify regarding statements made to him by appellant's accomplices, Monroe and Ivy, during custodial interviews.(fn1) The defense objected that admission of the statements would violate appellant's Sixth Amendment right to confrontation. The trial court ruled that it would allow Sergeant Clinton to testify regarding Monroe's and Ivy's statements "as far as planning a conspiracy to commit the offense." The trial court stated that it found such evidence to be "highly probative of the actual guilt or innocence of this defendant, as far as these charges that are pending . . . ."

Sergeant Clinton testified that he interviewed Monroe and Ivy separately. According to Sergeant Clinton, Monroe described the events leading up to the robbery during the interview. Monroe told Sergeant Clinton that, on the night of June 22, 2003, he, appellant, and Ivy planned to rob someone and steal that person's vehicle. Monroe also told Sergeant Clinton that he had found a nightstick in the bushes and had given it to appellant that night. The trio then walked around the Montrose neighborhood, where Amber was attacked, looking for a victim. Sergeant Clinton stated that Monroe also placed himself at the scene of the robbery.

Sergeant Clinton testified that Ivy provided a similar account of the events and corroborated Monroe's statement. In this regard, Sergeant Clinton told the jury that Ivy stated that he, Monroe, and appellant planned to rob someone and take the person's vehicle on the night in question. Sergeant Clinton indicated that Monroe and Ivy each told him that they had acted on the plan to rob someone and steal a vehicle.

On recross-examination, the defense asked Sergeant Clinton whether Monroe's and Ivy's statements were self-serving. Sergeant Clinton responded that the two men downplayed their roles in the robbery. As part of this line of questioning, Sergeant Clinton testified that one of the two men denied participating in the offense. Sergeant Clinton also testified that Monroe and Ivy admitted to planning the robbery but denied participating in "the actual beating" of Amber.

Following the defense's questioning, the State asked to approach the bench. The State asserted that the defense had "opened the door" to further questions about Monroe's and Ivy's statements. The defense responded that it tried to question Sergeant Clinton without "opening the door," explaining that it was in a difficult position due to its inability to cross-examine Monroe and Ivy. On the basis that the defense's questions arguably left the wrong impression of the facts with the jury, the trial court ruled that the State could further question Sergeant Clinton about Monroe's and Ivy's statements. Specifically, the trial court ruled that the State could question Sergeant Clinton about whether Monroe and Ivy placed themselves and appellant at the robbery scene, whether they all left in Amber's car, and whether the three men spent the three days following the robbery together until they were caught in Amber's vehicle.

At that point, the following exchange occurred between the prosecutor and Sergeant Clinton:

Q. Officer, when you questioned both Mr. Monroe and Mr. Ivy independently, did Mr. Monroe put himself at the scene of Amber Trevino's robbery over on Hawthorne Street?

A. Yes, ma'am.

Q. Did he also indicate that Chad Ivy was there at Ms. Trevino's robbery?

A. Yes, ma'am.

Q. And did he also indicate that [appellant] was there at Ms. Trevino's robbery?

A. Yes, ma'am.

Q. And did Mr. Ivy indicate the same things, that the three of them, [appellant], Mr. Monroe, and Mr. Ivy were all present over there on Hawthorne Street at Ms. Trevino's robbery?

A. Yes, ma'am.

Q. Did Mr. Monroe and Mr. Ivy also both indicate that they got in that maroon Toyota Corolla, all three of them, and left the scene of that robbery that night, June 26th [sic]?

A. Yes, ma'am.

Q. And did they indicate that they spent the next three days together, all three of them?

A. Yes, ma'am.
Appellant did not testify and the defense called no witnesses. The jury found appellant guilty of aggravated robbery as charged in the indictment.

Admission of Accomplices' Testimonial Statements

In one issue, appellant complains that the trial court erred by allowing Sergeant Clinton to testify regarding Monroe's and Ivy's statements. As he did in the trial court, appellant contends that the admission of the statements violated his right to confrontation under the Sixth Amendment of the United States Constitution.

Since the time of appellant's trial, the United States Supreme Court held in Crawford v. Washington that, without exception, testimonial statements of witnesses absent from trial are admissible over a Confrontation Clause objection only when (1) the declarant is unavailable and (2) the defendant has had a prior opportunity to cross-examine. 541 U.S. at 68, 124 S. Ct. at 1374. In this case, the State concedes that Monroe's and Ivy's statements, obtained as a result of police interrogation, were inadmissible under the newly crafted test enunciated in Crawford.(fn2) Instead, the State contends that the admission of the statements, through Sergeant Clinton's testimony, was harmless error.

Because the Sixth Amendment right of confrontation is a fundamental right, and because a violation of that right constitutes constitutional error, we must reverse a trial court's judgment when Confrontation Clause error is present, unless we can determine beyond a reasonable doubt that the error did not contribute to the conviction. See Tex. R. App. P. 44.2(a) (requiring reversal of constitutional error unless appellate court determines beyond reasonable doubt that error did not contribute to conviction); see also Evans v. State, 534 S.W.2d 707, 711 (Tex. Crim. App. 1976) (concluding that error of admitting co-defendant's statement was not harmless beyond a reasonable doubt). If there is a reasonable likelihood that the error materially affected the jury's deliberations, then the error was not harmless beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000).

In making this determination, we do not focus on the propriety of the outcome of the trial; rather, we "calculate, as nearly as possible, the probable impact of the error on the jury in light of the other evidence." McCarthy v. State, 65 S.W.3d 47, 55 (Tex. Crim. App. 2001). Though the presence of overwhelming evidence supporting the finding in question can be a factor in the evaluation of harmless error, our analysis is not whether the remaining, legally admitted evidence is sufficient to support the conviction. See id. (quoting Satterwhite v. Texas, 486 U.S. 249, 258-59, 108 S. Ct. 1792, 1798 (1988)); see also Wesbrook, 29 S.W.3d at 119; Brooks v. State, 132 S.W.3d 702, 708 (Tex. App.--Dallas 2004, pet. ref'd). When assessing harm caused by inability to confront, other non-exclusive factors include whether the unchallenged testimony was cumulative, presence or absence of corroboration, and overall strength of prosecution's case. See Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438 (1986).

In a nutshell, the question that we ask in conducting our harm analysis is whether a reasonable possibility exists that the error, either alone or in context, "moved the jury from a state of nonpersuasion to one of persuasion as to the issue in question." Wesbrook, 29 S.W.3d at 119. If we hold that an error is harmless, we are "in essence asserting that the nature of the error is such that it could not have affected the jury." Id.

Here, the State contends that any error in the admission of Monroe's and Ivy's statements was harmless because the evidence of appellant's guilt is "overwhelming." Based on our review of the record, we disagree that the error in this case was harmless.

The charge in this case authorized the jury to convict appellant of aggravated robbery as a principal or as a party to the offense. A person commits the offense of robbery if, in the course of committing theft and with the intent to obtain or maintain control of property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. § 29.02 (Vernon 2003). A person commits the offense of aggravated robbery if he commits robbery and uses or exhibits a deadly weapon. Id. § 29.03(a)(2) (Vernon 2003).

Under the law of parties, a person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Id. § 7.01(a)(2) (Vernon 2003). In this case, the jury was instructed that 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. Id.

The State had the burden to prove appellant's culpable mental state with regard to the commission of aggravated robbery, regardless of whether the jury found appellant guilty as a principal or as a party to the offense. In this respect, the State had to prove that appellant hit appellant with a club with the intent of taking her belongings or with the intent of aiding or assisting Monroe and/or Ivy in taking her belongings. See id. §§ 7.02(a)(2); 29.02; see also Cooper, 67 S.W.3d at 222. Undeniably, circumstantial evidence was presented in this case from which the jury could have reasonably inferred such intent.

Marina identified the three men that she saw near Monica's townhouse as appellant, Monroe, and Ivy. Another friend in the group, Monica Duran, testified that she saw one of the three men carrying something that looked like a club, although she did not look at their faces. According to Amber, appellant was the first to strike her from behind with a "club." Amber also testified that, while appellant repeatedly beat her with the club, Monroe and Ivy took her bags and ran toward her car. The evidence showed that Monroe, Ivy, and appellant were caught three days after the robbery in Amber's car. When the police tried to stop the car, Monroe led them on a high-speed chase. After the car crashed, the three men ran from the car and fled on foot. Appellant and Ivy hid and were tracked down by the police K-9 unit. Such sequence of events is arguably sufficient to support the jury's finding that appellant intended to commit aggravated robbery. However, the question we must answer in conducting our harm analysis is not whether the evidence is sufficient to support appellant's conviction. As noted by Justice Hudson in a post-Crawford case in which the admission of a co-defendant's statement was held to be harmful, "While such evidence may well be sufficient to satisfy the State's burden of proof, we must not focus merely on the propriety of the outcome of the trial, but the integrity of the process that led to the conviction and punishment." Jahanian v. State, 145 S.W.3d 346, 351 (Tex. App.--Houston [14th Dist.] 2004, no pet.) (citing Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989)).

Intent can be inferred from the acts, words, and conduct of the accused. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991). Moreover, the Court of Criminal Appeals has held that evidence showing that a theft occurs immediately following an assault is sufficient to support an inference that the defendant had an intent to commit robbery, even when the State does not offer other evidence to show that the assault was committed with the intent of facilitating the theft. Cooper, 67 S.W.3d at 225. However, as mentioned, we are not conducting a sufficiency of the evidence review in this case.

Here, the State's evidence showed that appellant was the first to strike Amber. Amber testified that Monroe and Ivy then began kicking and hitting her. She testified that it was Monroe and Ivy who took her purse and Armani bag and then ran toward her car. She also testified that, after Monroe and Ivy ran toward the car with her belongings, appellant remained behind and continued to beat her with the nightstick until a neighbor intervened. No direct evidence was presented that appellant took Amber's belongings or was ever in possession of them. When the three men were caught on June 26, three days later, it was Monroe who was driving the car; appellant was a passenger. Thus, while evidence of appellant's acts constitute direct evidence of an intent to assault Amber, they are only circumstantial evidence of his intent to facilitate a robbery.

This case is unique because direct evidence of a defendant's state of mind is rarely available. Intent is often inferred from conduct and from the cumulative effect of the circumstantial evidence and the rational inferences drawn from that evidence. In this case, however, the jury was not required to make such rational inferences. Rather, Monroe's and Ivy's statements provided direct evidence that appellant possessed the requisite intent to commit robbery as he struck Amber.

As discussed, Sergeant Clinton testified that Monroe and Ivy told him that they and appellant planned to rob someone and steal that person's car on June 22, 2003. The accomplices also told Sergeant Clinton that they walked around the neighborhood where Amber was attacked looking for a victim to rob. The accomplices stated that they had acted on their plan that night. Thus, Monroe's and Ivy's statements constitute direct, unchallenged proof that appellant had the requisite intent to commit aggravated robbery when he was beating Amber. No other direct proof of appellant's intent to rob Amber was offered in this case.

Other portions of the confessions provided circumstantial evidence from which the jury could infer that appellant struck Amber with the intent of facilitating the theft of her belongings, rather than solely with the intent and purpose of assaulting Amber. In this regard, Sergeant Clinton testified that Monroe told him that he found and gave a nightstick to appellant before the robbery occurred. Monroe and Ivy also told Sergeant Clinton that they and appellant left the robbery scene in Amber's car and then spent the next three days together. This testimony also tends to show that appellant acted with the intent of robbing Amber.(fn3) No other admitted evidence revealed these incriminating details.

Notably, Monroe's and Ivy's statements served to corroborate Amber's identification of appellant. Concomitantly, Amber's testimony also served to corroborate Monroe's and Ivy's statements. These two points are significant because appellant's primary defense at trial was that the eyewitness identification of appellant was not reliable. Though Amber testified under direct examination that she was certain that appellant was her assailant, the defense elicited testimony that arguably called her identification into question. When evidence that corroborates the unchallenged accomplice statement is itself subject to attack, the potential for harm may be exacerbated. At that point, the accomplice statement gains strength from, and gives support to, the challenged corroboratory evidence, thereby increasing the perceived importance of the accomplice statements to the jury. See Mendez v. State, 56 S.W.3d 880, 893 (Tex. App.--Austin 2001, pet. ref'd) (concluding that co-defendant's statement placing defendant at scene was most persuasive evidence of such when the reliability of other testifying witness's account given at trial was undermined on cross-examination).

On cross-examination, Amber responded affirmatively that she was first struck from behind. Amber acknowledged that, while being attacked, she "curled up into a ball" and put her hands over her face to fend off the blows. The defense elicited testimony from Amber that she worked two jobs and attended school, suggesting that she may have been fatigued at the time of the 3:00 a.m. attack. The defense pointed out that, while Amber unequivocally identified Monroe and Ivy in the lineups, she told Sergeant Clinton that appellant "looked like" the man who hit her with the club when she was shown the photo spread. Undoubtedly, Marina's identification of appellant as one of the men she saw an hour before the robbery lent credibility to Amber's identification. However, the defense attacked Marina's credibility, as a witness, by eliciting testimony that she had been drinking earlier that night.

In contrast, Monroe's and Ivy's statements were not subject to cross-examination. The statements constituted unchallenged substantive evidence offered to prove appellant's guilt of aggravated robbery and to refute appellant's defensive theory that the witnesses' identifications were not reliable. Significantly, the statements are the only eyewitness evidence, besides Amber's testimony, that placed appellant at the scene during the offense. Monroe's and Ivy's confessions directly implicate appellant in the offense and, although presumptively unreliable, were persuasive evidence of appellant's guilt presented to the jury. An accomplice statement, offered without cross-examination, has the potential to be determinant evidence when presented to a lay jury. The statement's self-inculpatory nature lends it credibility, while simultaneously overshadowing its often self-serving purpose. See Muttoni v. State, 25 S.W.3d 300, 308 (Tex. App.--Austin 2000, no pet.) (noting misleading and persuasive nature of co-defendant's unchallenged eyewitness testimony).

Here, appellant had no opportunity to question Monroe's and Ivy's veracity, to refute the accomplices' accounts, to call attention to any possible inconsistencies or discrepancies in the statements, or to delve into the co-defendants' motivations for confessing and implicating appellant. It is well-settled that harmless error analysis for Confrontation Clause violations assumes that "the damaging potential of the cross-examination [would have been] fully realized." Van Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438. Thus, it cannot be said that cross-examination of Monroe and Ivy regarding their statements would have been of marginal utility. See Lilly v. Virginia, 527 U.S. 116, 136, 119 S. Ct. 1887, 1900 (1999).

In sum, it is well-recognized that "[a] co-defendant's statement that `expressly implicate[s]' a defendant is `powerfully incriminating.'" Brooks, 132 S.W.3d at 709 (quoting Richardson v. Marsh, 481 U.S. 200, 208, 107 S. Ct. 1702, 1707 (1987)). Monroe's and Ivy's unchallenged statements were certainly definitive and persuasive evidence for purposes of establishing that appellant was the man who struck Amber with the club and for purposes of showing that appellant acted with the requisite culpable mental state to commit aggravated robbery. Indeed, when the trial court determined that the accomplices' statements could be admitted, it remarked that such evidence was "highly probative of the actual guilt or innocence of this defendant. . . . ."

In post-Crawford jurisprudence, courts have recognized that unchallenged direct evidence from a criminal ally is more persuasive than challenged circumstantial evidence from other more innocuous sources. See Jahanian, 145 S.W.3d at 351 (holding harmful error occurred when accomplice's statement admitted because such was direct evidence of an essential element to the offense and was more persuasive than circumstantial evidence, even though circumstantial evidence was sufficient to support conviction); Brooks, 132 S.W.3d at 711 (holding admission of co-defendant's statement harmful because statement was only direct proof of appellant's culpable mental state and active participation, prior to and during offense, and was "clearly" more persuasive evidence than challenged circumstantial evidence, including complainant's eyewitness testimony that she saw defendant at crime scene); cf. Bratton v. State, 156 S.W.3d 689, 695 (Tex. App.--Dallas 2005, no pet.) (holding that error in admitting co-actors' statements not harmful because cumulative of other evidence admitted at trial). Moreover, accomplice testimony that is not subject to cross-examination is powerful evidence to corroborate another witnesses's identification that has been called into question on cross-examination. See Samarron v. State, 150 S.W.3d 701, 708 (Tex. App.--San Antonio 2004, pet. ref'd) (holding error in admitting co-defendant's statement harmful when statement served to corroborate otherwise weak testimony of eyewitness at trial).

Although an unintended consequence, the State's closing argument also demonstrates the importance of Monroe's and Ivy's statements to the prosecution in this case. The State first stressed that, even if there was any doubt about Amber's identification of appellant, the jury could rely on the accomplices' statements. In this regard, the State argued, "[Y]ou know he's the guy because you know that Larry and Chad, the codefendants, also told you he was there, That [sic] they planned it. They walked around and they were looking for someone to rob . . . ." Later in its summation, the State again stressed the accomplice statements. The State reminded the jury that it had ample evidence to convict appellant, including the evidence that appellant was captured in Amber's stolen Corolla and Amber's and Marina's testimony identifying appellant. The State then emphasized, "And in addition to that, you have what the codefendants said to the officers. That they were out there on the corner, that they were looking for a victim and had been for hours." In essence, the State's argument conveyed to the jury that, even if the other evidence was not enough for them to convict appellant, the co-defendants' statements served to tip the scales in favor of a guilty finding. Thus, not only did the trial court believe that the statements were "highly probative" of appellant's guilt, the State's argument suggests that it did as well.

Though the State's properly admitted evidence against appellant was strong and could likely support a guilty finding, we do not agree that it was "overwhelming." See Wesbrook, 29 S.W.3d at 119. Rather, Monroe's and Ivy's unchallenged statements, which served to incriminate appellant and refute the defense's theory of eyewitness misidentification, was the most powerful and persuasive evidence offered by the State. If we were to rule that the error of admitting Monroe's and Ivy's statements was harmless, we would essentially be asserting that the nature of that error is such that it could not have affected the jury in this case. See id. This we cannot do.

Based on our review of the record, we conclude that a reasonable possibility exists that the error in this case, either alone or in context, moved the jury from a state of nonpersuasion to one of persuasion. See id. Monroe's and Ivy's statements were unequivocal and had the potential to remove any doubt about appellant's guilt in this case. We conclude that there is a reasonable likelihood that the error materially affected the jury's deliberations. See id. We, therefore, cannot conclude beyond a reasonable doubt that the admission of Monroe's and Ivy's statements did not contribute to the jury's guilty verdict for the offense of aggravated robbery. See Tex. R. App. P. 44.2(a); Brooks, 132 S.W.3d at 711 (reaching same conclusion in analogous case).


For the reasons discussed above, we hold that the admission of Monroe's and Ivy's statements was harmful error and sustain appellant's sole point of error. Accordingly, we reverse the judgment of the trial court and remand this cause for further proceedings.

Laura Carter Higley Justice

Panel consists of Chief Justice Radack and Justices Higley and Bland.


1. The record reflects that Monroe and Ivy were convicted in a separate trial of aggravated robbery with regard to the incident at issue in this case. During appellant's trial, Monroe and Ivy were brought before the trial court outside the presence of the jury. When asked, Monroe and Ivy refused to testify at appellant's trial.

2. The Supreme Court specifically identified statements given during police interrogations as "testimonial." Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004). It is not in dispute that appellant had no opportunity to cross-examine Monroe or Ivy either before or during trial.

3. Originally, the trial court limited the State's questioning to the accomplices' statements that the three men had a plan to rob someone and steal that person's car. Subsequently, the trial court allowed the State to elicit testimony from Sergeant Clinton that Monroe and Ivy told him that the three men left in Amber's car and then spent the next three days together. The defense purportedly "opened the door" by asking questions on cross-examination regarding whether the accomplice's statements were self-serving. Arguably, appellant has waived his right to complain about the admission of the portions of the statements admitted after the defense "opened the door." However, the better view would be that appellant has not waived his right to complain about any portions of his accomplice's statements admitted at trial. Defense counsel made clear that he had no intention to waive his objection to the admission of the statements and was not "opening the door." Pointing out that he was at a disadvantage because he could not cross-examine the accomplices, defense counsel stated that he was attempting to mitigate the damage done to his client by the previously admitted portions of the statements. Thus, appellant has not waived his right to complain about any portions of the statements admitted at trial. See Wappler v. State, 138 S.W.3d 331, 333-34 (Tex. Crim. App. 2004) (holding that waiver of rights requires intentional relinquishment or abandonment of known right or privilege by actual renunciation or intentional conduct inconsistent with claiming that known right).

Anonymous said...

Prof. Friedman: I strongly disagree with your statement that Bruton and Crawford are not particularly related. I think Crawford implicitly holds that even a redacted testimonial statement of a co-defendant remains a testimonial statement, and is not admissible unless the state shows the declarant is unavailable and the testimonial statement was subject to cross-examination. So no more playing the redaction-game in joint trials: if Defendant A made a statement but doesn't testify, a jury sitting on Defendant B's case can't hear A's statement. No limiting instruction trumps the Sixth Amendment.

I won State v. Ennis, 212 Or App 240, rev den 343 Or 223 (2007), which doesn't go as far as I do, but it didn't have to to give Mr. Ennis the win.

I practice state and federal appellate law in Portland, Oregon. I'm speaking at the Oregon Criminal Defense Lawyers Ass'n on this point March 14. I'll send you my 13 page paper if you ask.

Laura Graser.

Unknown said...

So far federal district courts are having a difficult time believing that Crawford limits Bruton's applicability. I have had judges permit a "redacted" statement in conspiracy cases where the statement may not inculpate the defendant but it helps prove the conspiracy. I face a RICO soon where the AUSA specifically stated that the "redacted" co-defendant statement will be used to provide direct proof of the charged RICO enterprise. Anyone have a success in federal court?

Helena said...

This will not actually have effect, I think so.