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Excited Utterances in Domestic Violence Cases

By Bill Delmore

If Lagunas v. State, 2005 WL 2043678 (Tex. App.–Austin No. 03-03-00566-CR, August 25, 2005), is any indication, the use of excited utterance evidence in domestic violence cases has safely weathered the storm of uncertainty which followed the Supreme Court’s landmark Confrontation Clause decision in Crawford v. Washington.
In Crawford, the Supreme Court held that the evidentiary use of a “testimonial” statement obtained by law enforcement personnel violates a criminal defendant’s constitutional right to confront witnesses against him, unless the maker of the statement is unavailable and the defendant previously had an opportunity to cross-examine him. The Court declined to attempt to provide a comprehensive definition of the term “testimonial,” stating only that it applied, at a minimum, to prior testimony and “police interrogations.”
The lack of guidance as to the scope of Crawford led the late Chief Justice Rehnquist to accurately predict that it would cast a “mantle of uncertainty over future criminal trials.” Crawford specifically dealt with a codefendant’s statement against penal interest, but trial and appellate courts have been asked to extend the holding to other out-of-court statements offered under various exceptions to the hearsay rule. Prosecutors who handle domestic violence cases have expressed concern that victims’ excited utterances to 911 operators and police officers—previously admissible under rule 803(2) of the Texas Rules of Evidence—would no longer be admissible in assault prosecutions. Without that evidence, many domestic violence cases would be impossible to prosecute because of the victims’ reluctance to testify against a spouse, romantic partner or family member.
Several Texas courts of appeals have held, however, that statements made to officers responding to a call, during the initial assessment and securing of a crime scene, are not “testimonial,” and that their use in a criminal trial in which the declarant is not present does not contravene the holding in Crawford. Lagunas continues that trend, and perhaps extends the period of time in which a conversation with a police officer is not comprised of “testimonial” communications.
In Lagunas, the 22-year-old complainant, identified only by the initials “M.M.,” was awakened in her bed by a man who covered her mouth with his hand. She tried to flee, but her assailant—whom she recognized as Adrian Lagunas, an occasional occupant of the New Braunfels house in which M.M. was staying with her two children—caught her and beat her with his fist. Lagunas bound M.M. with articles of clothing, placed a plastic sack and a t-shirt over her head, and forced her into her automobile. M.M. bailed out of the car when Lagunas stopped, ran to a nearby residence, and called the 911 operator for help.
When emergency personnel responded, M.M. expressed concern for the well-being of her children, and New Braunfels police officer John Sullivan went to M.M.’s residence and found two-year-old R.M. and four-year-old D.M. on their mother’s bed. D.M. was scrunching her eyes closed in an effort to feign sleep, and Sullivan told her he was a police officer and asked her whether everything was all right. D.M. began crying hysterically and answered that her “Mommy was dead.” Sullivan asked what happened to her mother, and the child responded, “A bad man killed her and took her away.”
Adrian Lagunas fled to Houston before he was charged with aggravated kidnapping and burglary of a habitation. When eventually brought to justice, Lagunas denied having assaulted or abducted M.M., and prosecutors needed some corroboration of her account of the incident. And when D.M. was found to be incompetent to testify because of her lack of understanding of the obligations of an oath, the admissibility of her statements to Sullivan became a critical issue. The trial judge overruled Lagunas’ objection that the statements constituted unreliable hearsay, and Lagunas was convicted of both offenses and sentenced to 35 years in prison.
The Austin Court of Appeals found that Lagunas had adequately preserved for review his appellate contention that the introduction of D.M.’s statements to Sullivan violated the Confrontation Clause under the holding in Crawford, despite the apparent lack of any constitutionally-based objection, but it found that the statements were not “testimonial” in nature upon considering and balancing five factors the court deemed to be relevant: (1) the spontaneity of the statement; (2) the identity of the person to whom the statement was made; (3) the age and sophistication of the declarant; (4) the nature or purpose of law enforcement involvement; and (5) the temporal proximity of the statement to an emergency or exigent circumstance.
The court of appeals found that several of the circumstances under which D.M.’s statements were obtained were indicative of a “testimonial” statement. It noted that D.M.’s statement was made to a police officer who was involved in a criminal investigation, in response to the officer’s query, and that a significant amount of time had elapsed between the startling event (M.M.’s abduction) and D.M.’s tearful conversation with Sullivan.
On the other hand, D.M.’s tender age and her highly agitated emotional state militated against the notion that her statement to Sullivan was “testimonial”; and Sullivan was motivated primarily by the desire to calm a frightened child, rather than engage in formal questioning. In sum, the court of appeals concluded that D.M.’s statements lacked “the indicia of solemn declarations made to establish or prove a fact,” and were therefore “not testimonial in nature as envisioned by the Confrontation Clause and Crawford.”
The Texas Court of Criminal Appeals may yet have the last word on the topic of whether the introduction of D.M.’s statements contravened Crawford, but the intermediate appellate court’s decision in Lagunas suggests that the excited utterance to a police officer is likely to remain a viable tool for prosecutors in domestic violence cases.

Bill Delmore is chief of the Legal Services Bureau of the Harris County District Attorney’s Office. He is a 1982 graduate of the University of Houston Law Center.

Disjunctive Charging in Criminal Cases and a Unanimous Jury Verdict

By Judge Belinda Hill

In Ngo v. State, 2005 WL 600353 (Tex. Crim. App. March 16, 2005), the Court of Criminal Appeals held that disjunctive jury charges will result in egregious harm and reversal. The Court held that determining whether a jury charge is disjunctive turns on whether the submitted charge contains separate criminal acts or alternative manner and means of committing the same act. In Footnote 24, the court gave some guidance on how to make that determination. “A handy, though not definitive, rule of thumb is to look to the statutory verb defining the criminal act.” Id. at *4.
The defendant in Ngo was convicted in Harris County of credit card abuse based on an indictment alleging he stole the credit card or received the stolen credit card or fraudulently presented it. The Eastland Court of Appeals reversed and remanded, holding the three application paragraphs in the jury charge allowed jurors to convict if some thought he stole the credit card, others thought he received the credit card and still others thought he fraudulently presented the credit card. Id. at *1. Although the defendant did not object to the charge, the court of appeals found the error was reversible. Id. The Court of Criminal Appeals agreed with the court of appeals, finding that because the word “unanimously” appeared only in boilerplate language of the charge, that jurors could have thought they had to agree only on whether the defendant was guilty or not guilty. Id. at *3-*4. The Texas Constitution and Code of Criminal Procedure (Tex. Const. art. V, §13; Tex. Code Crim. Proc. arts. 36.29(a), 37.02, 37.03, 45.034-45.036) require unanimity in criminal cases, which means that each juror must agree on the same, single, specific act. Id. at *4. In this case, the Court of Criminal Appeals held that unanimity on the general verdict of guilt violated the defendant’s right to a unanimous verdict because two of the application paragraphs were mutually exclusive – the defendant could not have stolen and received the same credit card. Id. at *8. The Court of Criminal Appeals stated that disjunctive jury charges are permissible as long as each application paragraph of the charge includes the word “unanimously.” Id. at *6.
The holding in the Ngo case is easy to understand because the offenses submitted in the jury charge, by their very nature, are separate criminal acts. A defendant cannot steal and receive and use a credit card in one criminal transaction. Using the guidance in Footnote 24, it is also easy to understand the Court of Criminal Appeals’ reasoning. The verbs defining the acts in Texas Penal Code § 32.32(b) are listed in separate subsections of the statute. Subsection 1 deals with fraudulently using a credit card and subsection 4 deals with stealing a credit card.
In cases since the Ngo holding, courts of appeals have seemed to follow Footnote 24. In Dixon v. State, 2005 WL 1690597 (Tex.App.-Houston [14th Dist] July 21, 2005), the Court of Appeals found the trial court’s failure to order the State to elect which alleged sexual act it was relying on was harmful error because it allowed the jury to reach a non-unanimous verdict. In that case, the defendant was convicted of aggravated sexual assault of a child. The indictment alleged the defendant committed aggravated sexual assault of a child by causing his sexual organ to contact the sexual organ of the complainant but the child testified the assaults occurred hundreds of times. Id. at *1. The defendant requested the State to elect a date of occurrence, but the trial court denied the request. Id. at *2. The charge cited a date but the instruction advised that State did not have to prove an exact date. Id. The Court of Appeals reversed, holding that “[t]heoretically, each juror could have found appellant guilty of a separate offense” that occurred on the same date. Id. at *4. Looking at the statute as suggested by Footnote 24 of Ngo, each criminal act is defined in separate subsections of Texas Penal Code § 22.021(a)(1)(B). Subsection i defines the crime of penetrating the sexual organ of a child, while subsection iii defines the crime of contacting the sexual organ of a child.
The case to watch, however, is pending before the Court of Criminal Appeals. In Jefferson v. State, 2004 WL 3202874 (Tex.App.-Houston [14th Dist] Nov. 24, 2004, pet. granted), the Court of Appeals held that a jury charge was not disjunctive in a serious bodily injury to a child case. In that case, the defendant was convicted of injury to a child in Harris County. The submitted jury charge alleged the injury was caused by (1) striking the child with his foot; (2) causing the child’s head to strike an unknown object; (3) failing to stop physical abuse of the child; or (4) failing to provide proper medical care for the child. Id. at *1. The State argued the defendant was charged with one offense and the jury was given multiple theories of manner and means. Id. The Court of Appeals agreed. The statute at issue is Texas Penal Code § 22.04(a)(1). Applying Footnote 24 from Ngo, does not work as easily in this case. In subsection a, the statute defines the crime: “A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual: serious bodily injury…”
It appears easier to distinguish different criminal acts from alternative manner and means with some statutes and with others it is not. Footnote 24 in Ngo is a good starting point, but perhaps the Court of Criminal Appeals opinion in Jackson v. State will provide further guidance in making this all important determination that protects a defendant’s fundamental right to a unanimous jury verdict.

The Hon. Belinda Hill is judge of the 230th District Court in Harris County. Judge Hill is a graduate of Thurgood Marshall School of Law. She would like to acknowledge the assistance of Lisa Teachy, a third year student at South Texas College of Law, in the preparation of this article.

Attorney-Client and Attorney Work Product Privileges Yield To The
Crime-Fraud Exception

By Fred A. Simpson

In re Subpoena, __ F.3d__ (5th Cir. 2005) (with pseudonyms used in this sealed case), shows how attorney-client and/or work product privileges may be invalidated when attorney activities on behalf of clients pertain to continuing or future criminal or fraudulent activity. Never before had the Fifth Circuit been asked to assess the scope of the crime-fraud exception to the attorney-client and work product privileges where a grand jury compels an attorney to disclose all communications with his client, written, oral, or otherwise, rather than just certain discrete communications related to a particular issue or limited to a particular media.
Following a police search of Appellant’s home, a grand jury indicted Appellant for: (1) possession of a firearm by a convicted felon, (2) possession of a firearm with obliterated serial number, (3) possession of marijuana with intent to distribute, and (4) possession or use of a firearm in relation to drug traffic.
A subpoena was issued in the course of grand jury proceedings that commanded Appellant’s former counsel to appear and bring “all written statements” of Appellant and others and “all notes, records, and recordings of interviews,” and specifically ordered counsel not to assert either the attorney-client or work product privileges to circumvent the subpoena.
However, counsel refused to appear before the grand jury without a court order. The district court issued such an order after a special examination of counsel and his documents, followed by the denial of Appellant’s motion to quash. The district court’s order reiterated the grand jury’s subpoena for counsel to appear, produce all documents, and refrain from asserting the attorney-client privilege. However, the trial court stayed its order pending this appeal.
Under a “clearly erroneous” standard of review, the Fifth Circuit acknowledged the attorney-client privilege as the oldest privilege known to the common law for confidential communications, reviewing cases related to the broad public interests surrounding both that privilege and the attorney work product privilege (which, unlike the attorney-client privilege, belongs to both the client and the attorney, either one of whom may assert it). “But a client has no legitimate interest in seeking legal advice in planning future criminal activities.” As Cordoza wrote more than 50 years ago, “A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law.”
The Fifth Circuit balanced the government’s interests in crime-prevention against citizens’ rights when courts go about “carving out” the crime-fraud exception. The exception to attorney-client communications and work products must be limited and reasonably related to the furtherance of the ongoing or future crimes at issues. “Otherwise, to put it simply, the crime-fraud exception swallows the privilege rule.”
The thrust of the Fifth Circuit’s review has to do with how the privileges do not vanish “in toto,” but only as to those particular communications and materials related to the ongoing commissions of fraud or crime. To invoke the exception, there must be not only a showing of an ongoing or future wrongdoing, but some valid relationship between that wrongdoing and the specific communication and/or the work product reasonably related to the wrongdoing.
In other words, the fact that clients seek advice on criminal or fraudulent activity does not expose the entire body of attorney-client communication or related work product, only to that which has to do with the wrongdoing “which was the basis of the accused’s alleged crime or fraud.”
In this case, the district court did not err in finding a prima facie showing that the crime-fraud exception applied, but there was error in the assumption that attorney privileges entirely disappear and that all confidences within the attorney-client relationship are no longer shielded when crime or fraud is shown. The district court’s order should have been limited to reach only communications and documents that had lost their attorney-client and work product privileges, not as to the entire body of communications and documents.
The district court’s order and the grand jury subpoena were vacated and quashed, respectively, and the case was remanded with admonishment that any further grand jury and district court action ordered be consistent with the Fifth Circuit’s opinion.

Fred A. Simpson is a litigation partner at Jackson Walker L.L.P. He is an associate editor for The Houston Lawyer.

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