Appellant was indicted for one count of aggravated promotion of prostitution Count I and four counts of engaging in organized criminal activity Counts II-IV. The State proceeded to trial on Count II of the indictment. The El Paso Court of Appeals affirmed the conviction of the trial court, but it reversed and remanded the case for a new trial on the issue of punishment. Woodall v. State, No. We granted review to determine whether Appellant's confrontation rights were violated. We will reverse the court of appeals and remand for consideration of Appellant's remaining point of error.
The Naked Harem was an adult-entertainment establishment in El Paso where patrons paid a cover charge to enter and to be entertained by women dancing nude. Appellant was a co-owner and operator of the nightclub.
This case arises out of acts of prostitution that occurred on a regular basis at the club. Woodall, Tex. LEXIS During the guilt phase of trial, the State called several former managers, dancers, and patrons of the club. Generally, the testimony indicated that the club's official policy was that no sexual contact was allowed anywhere in the club, including the private rooms, but it was common for the dancers to engage in sexual acts with the patrons.
The testimony of the dancers and patrons who had engaged in sexual acts and prostitution in the club, as well as other testimony and physical evidence connecting Appellant to the prostitution activities at the club, is summarized in the court of appeals's opinion. The State rested its case-in-chief without calling Lucia Pinedo, a former dancer, to testify. In her case-in-chief, Appellant presented the testimony of several dancers who stated it was club policy that no sex was allowed in the club and who claimed not to engage in acts of prostitution at the club.
Appellant also testified in her own defense in an attempt to distance herself from the prostitution activities in the club. Following her own testimony, Naked harem el paso called Pinedo to testify as a defense witness.
Phyllis anne woodall v. the state of texas
During direct examination by Appellant, Pinedo testified that she had been in a car accident at the age of eighteen and suffered memory loss. She specifically stated that although she had been told she danced at the Naked Harem, she did not remember it. She also asserted that she did not remember testifying before the grand jury, but she had been told that she had done so. On cross-examination by the State, Pinedo again affirmed that she did not remember dancing at the Naked Harem or testifying before the grand jury.
Testimony also indicated that Pinedo was 15 years old when she danced at the Naked Harem. At the conclusion of Pinedo's cross-examination, there was no re-direct examination by Appellant. Subsequently, a bench conference was held, during which Appellant discussed the remaining evidence she might introduce and the State represented that it was not going to have any rebuttal evidence. The jury was then Naked harem el paso for the evening. The next day, Appellant offered three documents into evidence and then rested.
The State, in its rebuttal, attempted to recall Pinedo to the stand. Because she was not present inside or outside of the courtroom, the State proposed to read Pinedo's grand jury testimony to the trial jury as past recollection recorded under Texas Rule of Evidence 5.
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Appellant objected on two grounds. First, she argued that the testimony was not admissible as past recollection recorded because the State had not laid the proper predicate. Second, she contended that the testimony would deny Appellant her right to confrontation and cross-examination-she would not have the opportunity to question Pinedo about the discrepancy between her grand jury testimony that she used her school ID card, which did not have her age, to obtain employment and a manager's testimony that a birth certificate was shown instead.
The trial court offered to secure Pinedo's presence with a writ of attachment, but Appellant declined because it would be a futile act due to Pinedo's lack of memory. The grand jury testimony was similar to the testimony of the other dancers called as witnesses by the State. Pinedo stated that although she was told no sex was allowed, she had sex and sexual contact with patrons on several occasions in the private rooms at the club.
She also allowed patrons to touch her breasts and vagina during lap dances on the floor if they were willing to pay more. The only wrinkle added by the grand jury testimony was the fact that she was only fifteen years old when she was dancing at the club. Pinedo explained that when she sought employment, she showed the manager her high school ID card, not a social security card, and told the manager that she was eighteen years old.
The State referred to Pinedo's age during its closing argument on several occasions. The jury found Woodall guilty. During the punishment phase, the State re-visited the evidence presented at trial, including Pinedo's grand jury testimony. On appeal, Appellant's eighth point of error argued that the admission of Pinedo's grand jury testimony violated the Confrontation Clause.
The El Paso Court of Appeals agreed.
The court of appeals began by properly setting forth the Crawford standard for analyzing Confrontation Clause issues. Washington, U. The court noted that, although Pinedo was questioned by Appellant at trial, she testified to a complete memory loss as to the relevant subject-matter. The court of appeals then addressed the State's argument that Pinedo's absence could have been remedied by a writ of attachment. The court determined that a writ of attachment would have been futile-it would not have changed the fact that Pinedo was absent because of her memory loss.
Subsequently, the court of appeals held that the admission of Pinedo's grand jury testimony violated the Confrontation Clause as set forth in Crawford. Next, the court of appeals conducted a harm analysis. After articulating the standard for analyzing a Crawford error, including the four factors to consider, 6 the court held that the error was harmless as to the guilt phase but harmful as to the punishment phase.
It concluded that Pinedo's grand jury statement did not contribute to the conviction because it was cumulative of the former dancers' testimony, and even if the grand jury testimony were excluded, the evidence was legally sufficient to support a conviction.
But the same could not be said at the punishment phase.
Coutta v. state
Also, the court noted that no other child witness testified at trial and that the State sought a harsher punishment because Appellant never apologized for allowing child prostitution to occur. Accordingly, the court of appeals affirmed the judgment of the trial court but reversed and remanded the case for a new trial on the issue of punishment.
Based on the resolution of this point of error, the court of appeals did not address the seventh point of error, which complained that Pinedo's grand jury testimony was erroneously admitted under the past recollection recorded hearsay exception. We granted the State's petition for discretionary review challenging the court of appeals's holding that Appellant's constitutional right to confront the witnesses against her was violated. Specifically, the State's ground for review stated the following:.
The State contends that the court of appeals set forth the proper standard for analysis, but it then incorrectly applied that standard. The State argues that the two tests are not equivalent, so being unavailable as a witness under Rule a 3 is not the equivalent of being absent from trial as contemplated by the Confrontation Clause. Recognizing that the leading Supreme Court case on memory loss, United States v.
Owens, U. Pinedo was called by Appellant, appeared at trial, and answered every question to the best of her ability, so the Confrontation Clause was not implicated by the admission of Pinedo's prior grand jury statement. Finally, the State asserts that a temporary physical absence cannot support a Confrontation Clause violation here because, although Pinedo was not physically present when her grand jury testimony was admitted and she was not subject to further examination by Appellant, her absence could have been remedied.
The State insists that Pinedo's absence was wholly caused by Appellant's express refusal to have her attached and brought into court. Code Crim. Thus, according to the State, Appellant opted not to exercise her right to confront and should be estopped from complaining that her constitutional rights were violated, analogizing this to Morales v. State, S. Appellant responds that the Confrontation Clause was violated because Pinedo was absent at the time that her grand jury testimony was offered and was not cross-examined by Appellant about the pertinent subject-matter.
To begin, Appellant contends that while Crawford facially appears to support the State's position, that position cannot withstand critical examination. Appellant argues that her confrontation rights were implicated when the State called Pinedo as a rebuttal witness and moved to read her grand jury statements into evidence, at which time the witness was not physically present. Further, Appellant asserts that the Confrontation Clause was violated because she had not ly had an opportunity to cross-examine Pinedo at the grand jury or at any time after the State actually read the grand jury testimony at trial and that the prior day's testimony did not afford her with the opportunity to confront Pinedo about the contents of her grand jury testimony.
Appellant likens her case to the situation where a defendant has a limited right to recross-examination when a new matter is brought out on re-direct examination. Naked harem el paso United States v. Ross, 33 F. Caudle, F. Appellant notes that Pinedo's grand jury testimony included topics that were not addressed by either party on the preceding day of the witness's testimony i.
Former naked harem patrons testify in trial of club’s co-owner
In addition, Appellant contends that the State did not sustain its burden to demonstrate a good-faith effort to procure Pinedo's presence. Appellant stresses that it is undisputed that Pinedo was not in the courtroom, and the record is silent as to why. Finally, Appellant argues that Owens is distinguishable from this case. However, Appellant asserts that Pinedo was absent at the time the testimony was presented and its admission violated the Confrontation Clause because the State had not shown Pinedo to be unavailable and Appellant did not have a prior opportunity to cross-examine.
This constitutional guarantee applies to both federal and state criminal prosecutions. Texas, U. The essential purpose of the Confrontation Clause is. Mattox v.
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United States, U. The Supreme Court has pointed out that although the confrontation rules and the rules of hearsay generally protect similar values, the overlap between the two is not complete. Green, U. Hence, to implicate the Confrontation Clause, an out-of-court statement must 1 have been made by a witness absent from trial and 2 be testimonial in nature. If those threshold requirements are met, the statements are admissible and do not violate the Confrontation Clause only if 1 the declarant is unavailable and 2 the defendant had a prior opportunity to cross-examine the declarant.
Although we defer to a trial court's determination of historical facts and credibility, we review a constitutional legal ruling de novo. Langham v. The State and Appellant agree that Pinedo's grand jury testimony is testimonial. See Crawford, U. Although the court of appeals acknowledged that Pinedo was not physically present when her grand jury testimony was introduced, its holding was clearly based on the witness's memory loss.