Skief, Tiwian Laquinn ( 2015 )

655-f5
PETITION NO. PD-0655-15
COURT OF CRIMINAL APPEALS
IN THE
AUG 18 2015
OR COURT OF CRIMINAL APPEALS
OF TEXAS AT AUSTIN AM AcOPt* C!P!*
TIWIAN LAQUINN SKIEF PETITIONER
v.
THE STATE OF TEXAS RESPONDENT
PETITIONER'S PETITION FOR DISCRETIONARY REVIEW
On Petition for Discretionary Review from the Fifth District
Court of Appeals in No. 05-12-00223-GR Affirming Conviction in
No. F10-35936-L from the Criminal District Court No. 5 of Dallas
County, Texas.
FILED IN
COURT OF CRIMINAL APPEALS
AUG 19 23^5
ORAL ARGUMENT REQUESTED Abe| ^ ^ ^
TIWIAN LaQUINN SKIEF
TDCJ #01769917
COFFIELD UNIT
2661 FM 2054
TENNESSEE COLONY, TX. 75884
PRO SE.
IDENTITY OF JUSTICES, JUDGE, PARTIES, AND COUNSEL
BEFORE^JUSTICES BRIDGES, FITZGERALD,' AND MYERS: George Allen
Sr. Courts Bldg., 2nd floor, 600 Commerce St., Dallas, Tx. 75202.
TRIAL JUDGE: The Honorable Carter Thompson presided over the case
at 133 N. Riverfront Blvd. Dallas, Texas 75207.
PETITIONER-APPELLANT: Tiwian Laquinn Skief, TDCJ #01769917, Cof-
field unit, 2661 FM 2054,. Tennessee Colony, Tx. 75884.
TRIAL COUNSEL FOR PETITIONER: Mr. Roger Haynes, and Mr. Phillip
Linder, 3500 Maple Ave., Ste.400, Dallas Tx. 76219.
APPELLATE COUNSEL FOR PETITIONER: Mr. David J. Pire, 4144 N. Cen
tral Expressway, Suite 250, Dallas, Texas 75204.
RESPONDENT-APPELLEE: The State of Texas
TRIAL COUNSEL FOR STATE: Assistant District Attorney(s) Miss
Stephanie Mitchell and Mr Dewey Mitchell, 133 N. Riverfront Blvd.
L.B. 19, Dallas, Tx. 75207.
APPELLATE COUNSEL FOR STATE: Craig M. Watkins, Criminal Distict
Attorney of Dallas County., 133 N. Riverfront Blvd., L.B.19, Dal
las, Texas 75207.
SKIEF v STATE. PAGE ^
TABLE OF CONTENTS
CONTENTS: PAGE #
Cover page •"" i
Identity of Justices, Judge, Parties, and Counsel ii
Table of Contents iii
Index of Authorities v
Statement regarding .oral argument vi
Statement of the case vii
Statement of procedural history viii
Statement of jurisdiction ix
Questions for review: x
1* When deciding whether the State is entilted to •:.
an instruction on limiting the right of self-de
fense; did the Fifth District Court of Appeals
unreasonably apply the facts of this case, and to
a standard, subscribed in Lee, Fink, and Bumguar-
dner, that conflicts with the facts—along with
the justified decisions—in Lee, Fink, and Bum-
guardner? 1-7
2- Does the Fifth District Court of Appeals' de
cision conflict with Wall v. State, and is their
decision unreasonable when the Court of Appeals
acknowledges that Riketta Johnson's statement was
an excited utterance—but refuses to use the cor-:,
rect standard hed in Wall? 7-10
3* Did the U.S. Supreme Court intend for the State
Skief v. State Page iii
TABLE OF CONTENTS
CONTENTS: r PAGE #
Courts to limit (or restrict) the term, or defi
nition of "Testimonial" to solely relate a state
ment, declaration, or affirmation to law inforce-
ment based agencies only—calling for "this Illus
trious Court of Criminal Appeals' power of Super
vision? 10-13
Prayer for Relief 14
Inmate Declaration 15
Proof of Mailing 16
Memorandum Opinion (See motion to suspend rule 68.4(j)N affixed).
Skief v. State Page iv
INDEX OF AUTHORITIES
CASELAW: PAGE #
1* Bumguander v. State, 963 S.W.2d 171 (Tex.App.--
Waco, 1998) 1,2,3
2* Coronado v. State, 351 S.W.3d 315 (Tex.Crim.App.
2011) 13
3* Ex Parte Tiwian Laquinn Skief, No. WR-82,496-01
(Tex.Crim.App. May 13, 2015)(Unpublished Op.) vm
4* Fink v. State, 97 S.W.3d 739 (Tex.App.--Austin,
2003) 1,2
5- Lee v. State, 259 S.W.3d 785 (Tex.App.--[1st dist]
Houston, 2007) 1,2
6* McCarty v. State, 227 S.W..3d 415 (Tex.App.--
Texarkana, 2007) 11,12
1' Skief v. State, No. 05-12-00223-CR (Tex.App.--
'Dallas, May 21, 2013)(Unpublished Op.) viii ,1,3,4
6-7,8,11
3427 F.3d 53 (1st Cir. 2005) 9
9- Wall v. State, 184 S.W.3d 730 (Tex.Crim.App.
2006) 7-9
TEXAS LAW: PAGE #
1- Penal Code: 9.31(b)(5)(A) x,l
9.31(b)(5)(B) 2
2* Rules of Appellate Procedure: 66.3(a) ix,7,10
66.3(f) ix,7,10,13
Other: NONE.
Skief v. State Page v
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is requested due to the everchanging caselaw
that pertains to the Petitioner's issues, or questions, at hand
that will be benificial to-this Honorable Court of Criminal Ap
peals .
Skief v. State Page vi
!•••'//
STATEMENT OF THE CASE
Petitioner was charged by -= a single indictment of'Murder in
cause number F10-35936-L which was pending in the Criminal Dist
rict Court No. 5 of Dallas County, Texas, the Honorable Carter
Thompson was the presiding Judge.
On February 6, 2012, Petitioner pled not guilty to the of:^
fense as charged in the indictment and a jury trial was held on
February 6-10, 2012, (RR3-4). Petitioner was convicted, and re
ceived a sentence of fifty (50) year of imprisonment, (CR 66, 69-
70; RR6, 126; RR7, 62). Petitioner timely filed a Motion for New
Trial that was denied by operation of law. (CR 72, 73).
§Mefgv. Statee Page vii
STATEMENT OF PROCEDURAL HISTORY
Petitioner timely appealed to the Fifth District Court of
Appeals in Dallas, Texas. See Skief v. State, No. 05-12-00223-CR
Mem. Opinion (Tex.App. —Dallas,,May 21, 2013)(unpublished Opi
nion). Justice Lana Myers handed down Petitioner's Memorandum
Opinion on May 21, 2013. id. The Petitioner filed a State Habeas
Corpus Application seeking for an out-of-time Petition~for Dis
cretionary Review. This Honorable Court granted Petitioner an
out-of-time Petition on May 13, 2015. See Ex Parte Tiwian La
quinn Skief, No. WR-82,496-01 (Tex.Crim.App. May 13, 2015)(Un-
published Per Curiam Opinion).
Petitioner did not file a Motion for Rehearing within the
Fifth District Court of Appeals. Petitioner timely filed a r:::.
motion to extend the deadline for filing his Petition for Dis
cretionary Review, and this Honorable Court granted the motion
and extended the deadline to September 7, 2015. See Skief v.
State, No. PD-0655-15 (Tex.Crim.App. May 29, 2015)(Postcard)
(The Honorable Court also suspended rule 9.3(b) of the Tex.R.
App.Proc. on May 29, 2015).
Petitioner files his Petition for Discretionary Review on
or before September 7, 2015, as required.
SkfiSf v. State Pa§e V111
STATEMENT OF JURISDICTION
Pursuant to the Texas Rules of Appellate Procedure, Rule 66.
3, this Honorable Court of Criminal Appeals has jurisdiction to
fully measure out, but ,not limited to, in deciding whether to
grant this Petition as follows:
1* Pursuant to Rule 66.3(a), Petitioner believes that the
Fifth District Court of Appeals' decision conflicts with State,
as well with the U.S. Supreme Court decisions on the same issue.
2' Pursuant to Rule 66.3(f), Petitioner believes that the
Fifth District Court of Appeals' decision has so far sanctioned
a departure, calling for this Honorable Court of Criminal Appeals
power of supervision.
3* Finally, under this Honorable Court's power of supervief.
sion (Rule 66.3(f)), Petitioner implores this Honorable Court to
interpret the U.S. Supreme Court's intent of whether or not It
intented to limit (or restrict) the term "Testimonial" to law
inforcement based agencies only.
Skief v. State Page ix
QUESTIONS FOR REVIEW
1* When deciding whether the State is entitled to an instru
ction on limiting the right of self-defense (under the Penal code
9.31(b)(5)(A)); did the Fifth District Court of Appeals unreason
ably apply the facts of this case, and to a standard, subscribed
in Lee, Fink, and Bumguardner v. State, that conflicts with the
facts—along with, the justified decisions—in Lee, Fink, and
Bumguardner? See Memorandum Opinion at 4, 6-7; RR5, 139-45; RR5,
135-36; RR5, 68-70; RR5,. 135,177; RR5, 120.
2* Does the Fifth District Court of Appeals', decision con
flict Wall v. State, and is their decision unreasonable when the
Court of Appeals acknowledges that Riketta Johnson's statement
was an excited utterance—but refuses to use the correct standard
held in Wall? See Memorandum Opinion at 14; RR4, 125-45.
3* Did the U.S. Supreme Court intend for the State Courts to
limit (or restrict) the term, or definition of "Testimonial" to
solely relate a;, statement, declaration, or affirmation to lav/
inforcement based agencies only—-calling for this Illustrious
Court of Criminal Appeals' power of supervision? See Memorandum
Opinion at 12,14; RR4, 125-45.
Skief v. State Pa§e x
COMPENDIOUS ARGUMENT
QUESTION ONE
When deciding whether the State is entitled to an instruc-:
tion on limiting the right of self-defense (under the Penal code
9.31(b)(5)(A)); did the Fifth District Court of Appeals unreason
ably apply the facts of this case, and to a standard, subscribed
in Lee [v. State, 259 S.W.3d 785 (Tex.App.—Houston, 1st Dist,
2007)], Fink [v. State, 97 S.W.3d 739 (Tex.App. —Austin, 2003)],
and Bumguardner v. State [963 S.W.2d 171 (Tex.App.—Waco, 1998)]
that conflicts with the facts—along with the justified decisions
—in Lee, Fink, and Bumguardner?
The Petitioner questions the Fifth District Court of Appeals
decision because of the conflicting facts, within other sister
court's of appeals, that was used to overrule the Petitioner at
hand. Nevertheless, the Petitioner does acknowledge that the
Fifth District Court of Appeals did correctly set out the Stand
ard held in Lee v. State, 259 S.W.3d at 789, and Fink v. State,
97 S.W.3d at 743. See Skief v. State, No. 05-12-00223-CR, pg.4
(Tex.App. —Dallas, May 21, 2013). However, the Conflict here
lies with the second prong to determine whether a limiting self-
defense instruction should be given? Therefore, this question
should be carefully answered: Is there evidence (facts) that r
shows Petitioner sought an explanation from or discussion with
the Complainant concerning their differences? Truly the answer
lies in the following!
In Lee, the Houston Court of Appeals concluded that an ex-
fcief v. State Page 1
COMPENDIOUS ARGUMENT
ception to the self-defense on instructing the jury about Lee
seeking a discussion or an explanation (pursuant to Penal Code
9.31(b)(5)(B) was justified. Because according to the State's ~-
witnesses, the car Lee was in stopped on the street. Sledge re-:
mained in the case. Lee got out. Lee, with a gun in his hand,
walked down a driveway towards Alexander (Complainant). Lee told
Alexander, "you robbed me. Your not gong to rob me no more."
The Houston Court also noted that "at another point in his test
imony, Mr. Vallery stated that Lee said, You're not going to rob
nobody else." Lee then shot Alexander before Alexander could ob
tain the weapon that Alexander carried in his waistband. Lee, 259
S.W.3d at 790.
In Fink, the Austin Court of Appeals concluded "that a rat
ional jury could infer from the circumstantial evidence that fink
left the Complainant, went to his apartment to arm himself then
left the apartment, and went downstairs to look for Pollard (com
plainant) "to see if the guy was coming after them" and solely
sought for an explaination or. discussion, then show the decease
five times when pollard reached behind him to obtain what was be
lieved to be a gun. Fink, S.W.3d at 743.
Axiomly, both Lee and Fink received their reasoning from a
Waco District Court of Appeals held in Bumguander v. State [963
S.W.2d 171, 175-76 (Tex.App. —Waco, 1998)]. The Waco Court of
Appeals concluded "that Bumguardner sought an explaination or :":_
discussion with Hinton when: Studer testified that she talked
Skief v. State r. o
Page 2
^.
COMPENDIOUS ARGUMENT
with Bumguarnder at 2:00am the day of the shooting. She said •"-..'..
that Bumguarnder was depressed and upset that his wife would not
stay home. She testified that Bumguarnder said he was going to
kill "Scooter" (Hinton). Studer also testified that Bumguarnder
admitted that he had been looking for "Scooter" and Sheila while
carrying a gun that night before the shooting. Bumguardner test
ified that he packed a gun and went to the continental cowboy to
look for Sheila. Reedy, the boucer at the continental cowboy,
testified that Bumguarnder walked through the bar and left. As
he exited the bar and walked toward, his truck, encountered Hinton
and summey, along with Harper. Wutnesses testified that Bumguar
nder was upset and angry and words were exchanged. Bumguarnder
demanded to know where his wife was. The evidence exists which
shows that Bumguardner ahd differences with Hilton and sought for
that explaination. Id. 963 S.W.2d at 175-76.
Contrarily, the Fifth District Court of Appeals unreasonably
concluded that a rational trier of fact could find Petitioner
sought an explanation from or discussion with the Complainant
after Petitioner's car suddenly swered and struck or nearly ?:::.
struck the Complainant, finding no error in the charge. See Skief
v. State, No. 05-12-00223-CR, pg 6-7 (Tex.App.—Dallas, May 21,
2013). The Petitioner's Dallas Court of Appeals relied on the
following four facts, that was present by the State through Alex
ander :
!• Suddenly, a white chrysler 300 pulled onto the street,
Skief v. State Page 3
COMPENDIOUS ARGUMENT
"whipped toward the man that was walking toward the rear of the
mazda, and "clipped" him. To Alexander, it looked as though the
driver of the chrysler deliberately tried to hit the man and that
hev was trying to harm the guy." Skief v. State, pg.5.
2- Complainant being angry, and quickly.walked toward to the
car that clipped him and he did not have a weapon.. Skief v. State
at pg 5-6.
3* Petitioner stood in between the door and his car, watchir
ing the guy walking toward him; and,
4* After driving through the intersection, Alexander conti
nued watching the two men in his rearview mirror, did not hear a
gunshot but saw the man who had exited the mazda "jump" or "fli^
nch," then turn around. Skief v. State, pg 6. At that point
Alexander called the police. Id.
Although it can be debated that Petitioner struck or nearly
struck the Complainant (by other mitigating evidence), what~evi-
encexan be::agr.eed: on by all witnesses. at trial? All witnesses
agree that the complainant's car was in the middle of the road,
on compton (being the busiest road in the neighborhood) and the
Petitioner veered around the car to avoid hitting the mazda, and
drove onto carver street. See State's Exhibit 4; RR5, 139-40.
The sole purpose and intent for driving.onto carver was that Pet
itioner was going to deliver some drugs to a client on Avalon St.
as a usual practice. RR5, 135-36.
Within the second point of the Fifth Dsitrict Court of Ap-:
Skief v. State Page 4
COMPENDIOUS ARGUMENT
peals' holding, both Alexander and Petitioner agreed that the :
complainant v/rathfully approached the Petitioner. See RR5, 68-70,
143-45. Complainant made a statement to petitioner "I told you
I was gone(slc) kill you." being only 10 feet away from the Pet
itioner. RR5, 143-45. Not one witness testified that the Peti^-
tioner said anything to the complainant. Not one witness testi
fied that the Petitioner sought out an explaination with the com
plainant. Axiomly it was the complete opposite, the complainant
was the one seeking for the discussion and explaination at hand.
Both the State and Defense witnesses support this fact. RR5, 68-
70, 143-45.
The third point of the Fifth District Court of Appeals' de
cision is that Petitioner stood in between the door and his car.
It is true that Alexander saw the Petitioner in between his car
door and the car because the Petitioner was looking for his -?'.:.: v.
phone. RR5, 135. Once the Petitioner found his phone he then •
shut the door and start walking towards ..the .house (through the
filed) on Avalon Street to deliver drugs to his client. RR5, 135,
177. Again both witnesses on each side agrees to this fact!
And. lastly, the Fifth District Court of Appeals concluded
that, while Alexander was looking through his rearview mirror, he
saw the complainant jump or flinch the turn around. At this point
Alexander called the police. Additionally, the State's eye wit-:
ness testified that.he did not see a weapon on either the Peti
tioner or complainant. RR5, 101. Nevertheless, the Petitioner is
Skief v. State Page 5
COMPENDIOUS ARGUMENT
not contenting whether or not he shot the complainant, instead
the entire theory of the defense is that Petitioner shot comp
lainant in self-defense.
At this point,/ the oniy witness at tirla that has described
the self-defense shooting was the Petitioner. All the facts at
trial shows that the complainant wrathfully approached Petition
er- The Petitioner has searched the entire record, and has found
that not one witness testified to the erroneous conclusion that
"the Petitioner sought out and/or approached complainant." Com
pare the record with Skief.v. State, No. 05-12-00223-CR, pg 6
(Tex.App.—Dallas, May 21, 2013). The one peice of evidence that
came into trial from the Petitioner was during a phone conversa
tion, Petitioner said: "the dude tried to do me, you know." RR5,
120. What is authentic about this statement? The authentication
is that Petitioner was not in court and did not know that it was
going to be admitted by the State. And this very statement cor
roborates Petitioner and Alexander's testimony that it was the
complainant that searched for the explaination and/or discussion
with the Petitioner, not the other way around as the Fifth Dist
rict Court of Appeals has done.
Therefore, is there evidence (facts) that shows the Peti-:.::
tioner sought an explaination from or discussion with the comp
lainant concerning their differences? NO! Truly and accurately
speaking, no testimony from either Petitioner or Mr. Alexander
supports the inference that Petitioner sought out and/or insti-
Skief v. State Page 6
COMPENDIOUS ARGUMENT
gated the conversation with the complainant. Finally, the Peti
tioner implores this Honorable Court:of Criminal Appeals to grant
this petition and hold that the Fifth District Court of Appeals
erroneously applied the facts to the correct standing law. And
further, hold that the State is not entitled to a limiting self-
defense instruction at hand. See Tex.R.App.Proc., 66.3(a)(f).
QUESTION TWO
Does the Fifth District Court of Appeals' decision conflict
with Wall v. State, and is their decision unreasonable when the
Court of Appeals acknowledges that Riketta Johnson's statement
was an excited utterance—but refuses to use the correct standard
held in Wall [v. State, 184 S.W.3d 730, 742-43 (Tex.Crim.App. 20-
06)]?
The Fifth Court of Appeals held that, "Nothing in the state
ment or in the circumstances under which it was made would lead
an objective witness reasonably to believe the statement would be
available for use at a later trial. The statement was not made
in any kind of formal setting or structured envirronment, nor was
it a response to a police interrogation, inquiry, or investiga
tion." See Skief v. State No. 05-12-00223-CR, pg 14 (Tex.App.
Dallas, May 21 2013).
Like many of the Texas Courts of Appeals, this Honorable
Court rejected any per se or categorical approah to the excited
utterance and testimonial hearsay inquires. See Wall v. State,
Skief v. State Page 7
COMPENDIOUS ARGUMENT
184 S.W.3d at 742-43. Next this Honorable Court agreed with the
First Circuit that the "excited utterance and testimonial hear
say inquiries are separate, but related. While both inquiries
look to the surrounding circumstances to make determinations
about the declarant's mindset at the time of the statement, their
focal points are different. The excited utterance inquiry focus
es on whether the declarant was under the stress of a startling
event. The testimonial hearsay inquiry focuses on whether a rea
sonable declarant., similarly situated (thatis, excited by the
stress of a startling event), would have had the capacity to app
reciate the legal ramifications of her statement." Wall v. State,
184 S.W.3d at 742 (emphasis added). In this case at hand, Rike
tta Johnson had the capacity to appreciate the legal ramification
of her very statement.
"These Parallel inquires require an ad hoc, case-by-case app
roach. An inquiring court first should determine whether a part
icular hearsay statement qualifies as an excited utterance. If
not the inquiry ends." Wall v. State, 184 S.W.3d at 742. The ~.
Petitioner agrees that Riketta's statement to Barbara Castro (the
house mom of a gentlemen's club) was an excited utterance. See,
Skief v. State, No. 05-12-00223-CR at page 12,14. If,...however,
the statement so qualifies (which it does), "the court then must
look to the attendant circumstances and assess the likelihood
that a reasonable person would have either retained or regained
the capacity to make a testimonial statement at the time of the
Skief v. State Page 8
COMPENDIOUS ARGUMENT
utterance. U.S. v. Brito, 427 F.3d 53, 61-62 (1st cir 2005)".
Wall v. State, 184 S.W.3d at 742.
Barbara Castro is a "House mom" at the local strip club cal
led lipstick (RR4, 125). Being the house mom of that kind of
business, she is normally the one to call the police when some
thing goes wrong. Riketta Johnson is no stranger to informing
Castro of something and when the police arrives she will relay
Riketta's statement(s) to the police. This is a normal practice
for this type of business. Riketta Johnson knew when she told
Castro: "my boyfriend shot someone" (RR4, 128), that Castro would
retain her testimony, and Riketta had the capacity to appreciate
the legal ramifications of her staternent(s) to Castro.
"By way of guidance, the Brito Court noted that generally
statements, made to police while the declarant (or other person)
is still in personal danger are not made with consideration of
their legal ramifications becuase the declarant:usually speaks
out of urgency and a desire to obtain a prompt response; thus,
those statements will not normally be deemed as testimonial. But
after to immediate danger has dissipated, a person who speaks
while still under the stress of a startling event is more likely
to comprehend the larger significance: of his words: 'If the re
cord fairly supports a finding of comprehension, the fact that
the statement also qualifies as an excited utterance will not al
ter its testimonial nature.'" Wall v. State, 184 S.W.3d at 742
(citing Brito,, 427 F.3d at 62, other citations omitted) (emphasis
Skief v. State Page 9
COMPENDIOUS ARGUMENT
added).
Riketta Johnson, being under the stress of the phone call,
was not in immediate danger and Riketta knew, and comprehended
the larger significance of her words. In basic terms the record
fairly supports her statements to Castro, and the fact that the
statement also qualifies as an.excited utterance, will not alter
Riketta's testimonial nature! The fact that the Fifth District
Court of Appeals overruled the Petitioner, and is now justlfing
their decision by saying: "On the contrary, ... the statement
appears to have been an excited utterance made to a co-worker
(Mem. Op. pg 14)." is not'logical•andfunreasohable when resembled
with this Honorable Courts decision in Wall. Further, justifing
Riketta's statement, giving this Honorable Court plenty of rea
son to grant this Petition. Tex.R.App.Proc. 66.3(a).
Finally, when the Fifth District Court of Appeals acknow
ledges the two-prong test set out in wall, is the Fifth Court of
Appeals bound to properly use it? Petitioner believes that they
are, and the Fifth Court of Appeals refuses to do so. Therefore
this petition should be granted and reviewed in the light of wall
v. State. See Tex.R.App.Proc • 66.3(a)(f).
QUESTION THREE
Did the U.S. Supreme Court intend for the State Courts to
limit (or restrict) the term, or definition of "Testimonial" to
solely relate a statement, declaration, or affirmation to law
Skief v. State Page 10
COMPENDIOUS ARGUMENT
inforcement based agencies only—calling for this Illustrious
Court of Criminal Appeals' power of supervision?
The Petitioner wishes to incorporate question Number two's
facts with argument into this argument as well.
In McCarty v. State [227 S.W.3d 415 (Tex.App.—Texarkana,
2007)], the Texarkana Court of Appeals explained the classic
examples that are given by Crawford. McCarty held, "Classic
examples of statement(s) that are testimonial are: (1) ex parte
in-court testimony or its functional equivalant; (2) extrajudi-
cal statements contained in formalized testimonial materials;
o
and (3) statements made under circumstances that would lead an
objective witness reasonably to believe that the statement would
be available for.use at a later trial." Id. 227 S.W.3d at 418.
Although these are the classic examples provided by crawford,
does this classic example(s) give the right for state courts to
limit the testimonial analysis to law enforcement based agencies
only? Petitioner believes that this example was not intended, by
the U.S. Supreme Court, to limit the facts and.circumstances of
one's case to law enforcement based agencies only.
Within Petitioner's case, the Fifth District Court of kp-^i~
peals basically denied relief because Barbara Castro—-the house
mom of lipstick, a strip.club—was not a law enforcement based
agency of some type. See Skief v. State, No. 05-12-00223-CR, Pg
14 (Tex.App.—Dallas, May 21, 2013).
The McCarty Court goes on to explain what "nonfeestimonial"
Skief v. State- Page 11
COMPENDIOUS ARGUMENT
statements were: "The facts and circumstances demonstrate the
statement's nontestimonial character:, the declaration was not :::.-.
made in any formal setting or structured, environment; it was not
made to an officer or in connection with any kind of investiga-v
tion; it was made at a time when McCarty was not under suspicion;
it was not made in response to any question; it was made during
or immediately, after the event that produced it; it was a spon
taneous excited utterance made while the complainant was in the
grip of fear and without time for reflection; it was more in the
nature of a cry for help than testimony; and the tender age and
excited state of the complainant weigh against the statement bei-
ing testimonial." McCarty, 227 S.W.3d at 418.
One Axiomatic fact about this holding is that the McCarty
Court did not cite, or rely on any authority while taking this
upon themselves to limit or restrict the Crawford's Confrontation
analysis. Id_. Further, the other Courts? seem to have adopted
this same view. However, Petitioner believes that the U.S. Sup
reme Court did not intend for their term, or definition to be
limited or restricted to law enforcment based agencies only!
Within Petitoiner's case at hand, the State intentionally
violated the confrontational clause, then cloaks, it in the ex
cited utturanee rule within the Texas Rules of Evidence 803(2).
On top of this, the Fifth Court of Appeals places their rubber
stamp of approval to. this kind of behavour.
Riketta Johnson was subpoenaed by. the State, along with
Skief v. State Page 12
COMPENDIOUS ARGUMENT
Barbara Castro. Both were present -and ready to testify. At not
one time did the State explain to the court that Riketta would
testify—making the hearsay statement admissible and satisfy the
confrontational clause. Instead, the State insisted on using
Castro's hearsay testimonial statement to violate the U.S. Sup
reme Court Precedent. In Coronado, v. State [351 S.W.3d 315, 322
(Tex.Crim.App. 2011)], this Honorable Corut held that "the only
indicium of reliability sufficient to satisfy constitutional de
mands is the one the constitution actually prescribes: Confron
tation." Id^ at 332.
Just like the Fifth Court of Appeals, are the Court of .
Appeals allowed to limit or restrict the definition of testi
monial down to law enforcement based agencies only? Therefore,
the Petitioner is invoking this Honorable Court's power of super
vision (rule 66.3(f)), and jurisdiction to interpret the U.S.
Supreme Court's intent of whether or not It intented to limit
(or restrict) the term "Testimonial" to law inforcement based
agencies only. And Petitioner implores this Honorable Court to
answer in the form of granting this petition to make precedent in
the State of Texas.
Finally, the Fifth District Court of Appeals should not be
allowed to limit the recipient of" a statement to law enforcement
based agencies only.
Skief v. State Page 13
PRAYER FOR RELIEF
Petitioner prays that this Honorable Court of Criminal
Appeals will grant this Petition, and/or make precedent in the
state of Texas.
Tiwian Laquinn Skief
#01769917-Coffield unit
2661 FM 2054
Tenn.Colony, Tx. 75884
Pro se.
Skief v. State Page 14
INMATE DECLARATION
I, Tiwian Skief, TDCJ #01769917, being currently incarcer--
ated in the TDCJ-CID Coffield unit in Anderson County, Texas,
declares that the foregoing is true and correct under the penalty
of perjury.
Executed this day of August \y , 2015.
Tiwian Laquinn Skief
#01769917-Coffield
2661 FM 2054
Tenn. Colony, Tx. 75884
Pro se.
!Ifci:ef% v^ State Page 15
PROOF OF MAILING
I, Tiwian Skief, TDCJ #01769917, being incarcerated in the
TDCJ-CID Coffield unit in Anderson County, Texas, declares that
I have placed this Petition for Discretionary Review into the
internal mailing system on August \\ , 2015.
This is true and correct under the Penalty of perjury.
Executed this day of August |\ , 2015.
2l^
Tiwian Laquinn Skief
Coffield unit- #01769917
2661 FM 2054
Tenn.Colony, Tx. 75884
Pro se.
Skief v. State Page 16
AFFIRM; and Opinion Filed May 21, 2013.
In The
(Eourt of Appeals
Jfftfth Btatnct of Qtexas at ©alias
No. 05-12-00223-CR
TIWIAN LAQUINN SKIEF, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F10-35936-L
OPINION
Before Justices Bridges, FitzGerald, and Myers
Opinion by Justice Myers
Appellant Tiwian Laquinn Skiefwas convicted of murder and sentenced to fifty years in
prison. In four issues, he contends the trial court erred (1) by refusing to remove portions of the
jury charge that were not supported by the evidence; (2) not admonishing the jury after it was
"contaminated" by witnesses and/or trial participants; (3) appellant's confrontation clause rights
were violated; and (4) the prosecutor engaged in improper jury argument. We affirm.
Discussion
Limiting Instruction on Self-Defense
In his first issue, appellant argues the trial court erred by refusing to remove portions of
the jury charge that were, according to appellant, not supported by the evidence. He contends
the trial court erred by overruling his objection to the portion of the jury charge that restricted
appellant's self-defense claim if appellant sought an explanation from the complainant, Tyvanti
Johnson, while unlawfully carrying a handgun. As objected to by appellant, the relevant portion
of the court's charge reads as follows:
Our law further provides that it is unlawful for a person to intentionally or
knowingly or recklessly carry a handgun on or about his person, unless he is
traveling.
A person acts "recklessly" or is "reckless" with respect to the result of his
conduct when he is aware of but consciously disregards a substantial and
unjustifiable risk that the result will occur. The risk must be of such a nature and
degree that its disregard constitutes a gross deviation from the standard of care
that an ordinary person would exercise under all the circumstances, as viewed
from the standpoint of the person charged.
For a person to be deemed "reckless" there must actually be both a
substantial and unjustifiable risk that the result complained of will occur, and that
the person acting was actually aware of such risk and consciously disregarded it.
While a defendant has a right to seek an explanation from or discussion
with another concerning a difference with the other person, the use of force
against another is not justified if the defendant sought an explanation from or
discussion with another concerning a difference with the other person while the
defendant was unlawfully carrying a handgun.
Now, therefore, if you find and believe from the evidence beyond a
reasonable doubt that the force used by the defendant against TYVANTI
JOHNSON was at a time when the defendant was seeking an explanation from
TYVANTI JOHNSON, but at that time the defendant was unlawfully carrying a
weapon, to-wit: a handgun, you will find against the defendant's claim of self-
defense.
Defense counsel objected to the portions of the above-quoted charge pertaining to
unlawful carrying of a weapon and the exception to self-defense. He argued the circumstances
required for the exception to apply were not raised by the evidence:
I would submit to the Court that that circumstance has not been raised by
the evidence. I would submit that the evidence that's before the jury is, both from
the testimony of the Defendant and of Eric Alexander, that Tyvanti Johnson, the
victim in this case, was the one who first hopped out of his car in the middle of
Compton Street and was attempting to flag down or approach [appellant]; that he
was the one who initiated the confrontation that resulted in Tyvanti Johnson's
death.
In this circumstance, I do not believe that the evidence could be
interpreted by the jury to the contrary, including phone records and everything
else that's been introduced by the State and by the Defense, testimony as well. A
reasonable jury could never conclude that it was [appellant] who initiated this
discussion in any way, shape or form. And I would submit that's improper in
charging the jury with that language.
-2- •
The State responded that there was evidence supporting the submission of the charge:
So it's the State's contention that there is evidence in front of this jury that
[appellant] had differences with the victim and, on that day, by pulling that car
over, by getting out and going toward or making himself in a position to seek out
a discussion about those differences, getting out of that car, as he sees where the
victim was, that that has been raised and the jury can absolutely interpret this in a
reasonable manner, to suggest that he armed himself and went and had himself a
confrontation with the victim in this case.
The trial court overruled the objection and presented the charge to the jury.
Jury charge error is reviewed under the standard set out in Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1985) (op. on reh'g). Under that standard, we first determine whether
there was error in the charge. Id. at 174. If error occurred and appellant objected at trial, the
reviewing court determines whether the error was "calculated to injure" the appellant's rights,
which means there must be "some harm" to the accused resulting from the error. Barrios v.
State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Almanza, 686 S.W.2d at 171). If,
however, the appellant did not object, the reviewing court will reverse only if the error resulted
in "egregious harm." Id. (quotingAlmanza, 686 S.W.2d at 171).
The penal code provides that a person is justified in using deadly force when and to the
degree the person reasonably believes it is immediately necessary to protect himself from
another's use or attempted use of unlawful deadly force. Tex. Penal CODE Ann. §§ 9.31(a),
9.32(a). An exception to self-defense applies when the actor "sought an explanation from or
discussion with the other person concerning the actor's differences with the other person while
the actor was: (A) carrying a weapon in violation of section 46.02." Id. § 9.31(b)(5)(A).
"A person commits an offense ifthe person intentionally, knowingly, or recklessly carries
on or about his or her person a handgun ... if the person is not: (1) on the person's own
premises or premises under the person's control." Id. § 46.02(a). A person also commits an
offense if he intentionally, knowingly, or recklessly carries on or about his or her person a
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handgun in a motor vehicle that is owned by the person or under the person's control at any time
in which: ... (2) the person is: (A) engaged in a criminal activity, other than a Class C
misdemeanor that is a violation of a law or ordinance regulating traffic," or is "prohibited by law
from possessing a firearm." Id. § 46.02(a-l)(2).
A defendant is entitled to an instruction on every defensive issue raised by the evidence.
Elmore v. State, 257 S.W.3d 257, 259 (Tex. App.—Houston [1st Dist.] 2008, no pet.). A
defensive issue may be raised solely by the defendant's testimony. Id. In determining whether
the defendant's testimony raises the issue of self-defense, the truth of the defendant's testimony
is not at issue. Id. Generally, issues like provocation or whether the defendant carried a gun to a
discussion are fact issues that are included in the charge as limitations to self-defense. See id. A
charge under section 9.31(b)(5)(A) limiting the right of self-defense is properly given when (1)
self-defense is an issue; (2) there are facts in evidence that show the defendant sought an
explanation from or discussion with the victim concerning their differences; and (3) the
defendant was unlawfully carrying a weapon. Lee v. State, 259 S.W.3d 785, 789 (Tex. App —
Houston [1st Dist.] 2007, pet. ref d); Fink v. State, 97 S.W.3d 739, 743 (Tex. App.—Austin
2003, pet. ref d).
The factors noted in Lee and other decisions are present in this case. First, appellant
testified he shot Tyvanti in self-defense; the charge instructed the jury on the law of self-defense.
Furthermore, appellant did not dispute he was unlawfully carrying a weapon. He admitted at
trial that he was carrying a handgun in violation of his parole and that he was selling drugs. As
for the second factor, whether there were facts in evidence showing the defendant sought an
explanation or discussion with the victim concerning their differences, appellant argues there
was no evidence he ever approached Tyvanti. Appellant contends his testimony and the
testimony of Eric Alexander, an eyewitness, show that the complainant approached appellant,
-4-
and that nothing in their testimony supports the inference that appellant sought out or instigated
the conversation with Tyvanti.
Appellant, known as "Hitman," and Tyvanti, known as "Eastwood" or "626," grew up
together in Irving and were friends into their adult years. Although not related, they had close
ties through their families and "were basically like cousins." By December of 2010, however,
their friendship had deteriorated. Several weeks before the shooting, they had a confrontation at
an Irving, Texas apartment complex. Tyvanti arrived at the apartments with his girlfriend,
Tanesha Jones, in a Mazda 626. Appellant and his cousin, Rashad Townsend, arrived shortly
afterwards in a gold Jeep. Appellant approached Tyvanti's car, pounded on the passenger's side
door, and yelled that Tyvanti owed him money. Tanesha could not hear the entire argument
between Tyvanti and appellant because she stayed in the car, but she heard appellant say, "On
blood, you're not going to be driving this car no more." Tyvanti then took off his shirt and said,
"Let's fight." At that point, appellant got back into the gold Jeep and drove away, almost hitting
Tyvanti.
Alexander testified that he was driving north on Compton street in Irving at
approximately 1:20 p.m. on December 28, 2010, when he saw a Mazda 626 stop in the road.
The driver of the Mazda "jumped" out of the car and walked toward the back of the car.
Suddenly, a white Chrysler 300 pulled onto the street, "whipped" toward the man that was
walking toward the rear of the Mazda, and "clipped" him. To Alexander, it looked as though the
driver of the Chrysler deliberately tried to hit the man and that "he was trying to harm the guy."
After "clipping" the man, the driver of the Chrysler drove to the next intersection, Compton and
Carver streets, immediately turned onto Carver, and parked his car. As Alexander drove by, he
could see the man in the Mazda walking towards "the car that clipped him." Alexander
"couldn't see or hear what he was saying, but he was upset." He did not appear to be carrying
-5-
any type of weapon. As for the driver of the Chrysler, Alexander added: "I saw a guy standing
outside his car, in between the door and his car. He was standing, watching the guy walking
toward him. Whatever he was saying." After driving through the intersection, Alexander
continued watching the two men in his rearview mirror. He did not hear a gunshot but saw the
man who had exited the Mazda "jump" or "flinch," then turn around. At that point, Alexander
knew "something bad" had happened, and he pulled over and called 911. On cross-examination,
he testified that he did not see a weapon in either driver's hand and that he could not identify
appellant in a six-photo lineup as one of the individuals he saw.
The suspect vehicle, a white Chrysler 300, belonged to Mark Sample, who was arrested
based on outstanding warrants and interviewed by the Irving police. During his first interview,
which occurred on the day of the offense, Sample admitted owning the car and told the police he
had been in possession of it the entire day of the offense. He denied any knowledge of the
shooting. In a second interview with the police the following day, Sample told the Irving police
detective, Joe Hennig, that appellant was driving the Chrysler at the time of the offense and that
they traded cars at the Lipstick Gentlemen's Club, where appellant's girlfriend, Riketta Johnson,
worked as a dancer. When he testified in his defense, appellant told the jury he traded cars with
Sample on December 28, 2010 because he "wanted to kind of show off a little bit" for an ex-
girlfriend' he planned to meet.
We conclude the trial court properly instructed the jury. There is sufficient evidence
from which a rational trier of fact could find appellant sought an explanation from or discussion
with the complainant after appellant's car suddenly swerved and struck or nearly struck the
complainant. Because there is evidence raising the issue, we therefore conclude the trial court
did not err by instructing the jury under section 9.31(b)(5)(A), and that the jury charge does not
Appellant identifiedthe ex-girlfriendas Stormy Roberson.
contain error. See Lee, 259 S.W.3d at 790-91. We overrule appellant's first issue.
Article 36.22
In his second issue, appellant contends the trial court erred by failing to admonish the
jury on the record after the jury was allegedly "contaminated by contact with witnesses and/or
participants in the case while outside the courtroom."
During the trial, immediately following the lunch break on the first day of witness
testimony, the trial court held a hearing outside the presence of the jury "regarding contact
between members of the jury and members of the public in the gallery, who are watching the
trial transpire." The trial court asked the State for its position on the issue, and the State told the
trial court that "the Defense is better able to explain" the situation. Defense counsel advised the
court as follows:
Right after the lunch break, a civilian who was sitting in the audience watching
the trial approached my investigator, indicated to [my investigator] that she was a
relative of [appellant]. Kind of like a stepsister, is how she described it. I don't
think it's actually a blood relationship. It doesn't sound like it. She indicated she
had been in here watching the trial.
When she was out in the hallway, two of the jurors approached her. One of the
ladies goes to her church, she said, and one of the men is someone that she used to
work with. They asked her why she was here. She simply said she couldn't talk
to them, because—I don't know if she said, "Because you're jurors, I can't talk to
y'all." She told me that she just told them, "I can't talk to you." She didn't talk
to them about the case at all. She didn't even tell them why she was here.
Just for record purposes, the State and myself and the Court have had a discussion
off the record about how we should handle that situation. And I believe we have
decided that, rather than make a big in-court discussion about it, the State and the
Defense have agreed that the Court may, with the bailiff, go back to the jury
room, reurge the admonitions to the jury and inquire about whether or not
anything about that relationship or that encounter would influence the two jurors
in question, about whether or not that would affect them as jurors in the case.
The State agreed with defense counsel's comments and the proposed solution. The trial
court stated: "With the agreement of both sides, the Court will meet with thejurors, escorted by
a bailiff, and stress to them the importance of restricting their deliberations to the facts and
-7-
evidence presented in court and not take into consideration their previous contact with members
in the gallery." Counsel for the State and defense reiterated their understanding and agreement
regarding the proposed solution. The record then reflects a "[b]rief pause in the proceedings," at
which point the trial judge and court bailiff went to the jury room to speak with the jury.
As a prerequisite to presenting a complaint for appellate review, appellant must present to
the trial court a timely request, objection, or motion stating the specific grounds for the desired
ruling. Tex. R. App. P. 33.1(a)(1)(A); Rhoades v. State, 934 S.W.2d 113, 119-20 (Tex. Crim.
App. 1996); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.). A
defendant "may not, for the first time on appeal, urge error not raised at trial." Nelson v. State,
607 S.W.2d 554, 555 (Tex. Crim. App. 1980). Even constitutional rights may be forfeited by the
failure to object. Castaneda, 135 S.W.3d at 723.
A juror must make decisions at the guilt and punishment phases using information
obtained in the courtroom: the law, the evidence, and the trial court's mandates. Ocon v. State,
284 S.W.3d 880, 884 (Tex. Crim. App. 2009). "No person shall be permitted to converse with a
juror about the case on trial except in the presence and by the permission of the court." TEX.
CODE Crim. Proc. Ann. art. 36.22. The primary goal of article 36.22 is to insulate jurors from
outside influence. Chambliss v. State, 647 S.W.2d 257, 266 (Tex. Crim. App. 1983); Bokemeyer
v. State, 355 S.W.3d 199, 203 (Tex. App.—Houston [1st Dist.] 2011, no pet.). "Therefore, if a
violation is shown, the effectiveness of possible remedies will be determined in part by whether
the conversation influenced the juror." Ocon, 284 S.W.3d at 884.
"A violation of Article 36.22, once proven by the defendant, triggers a rebuttable
presumption of injury to the accused, and a mistrial may be warranted." Id. "When determining
whether the State sufficiently rebutted the presumption of harm, we view the evidence in the
light most favorable to the trial court's ruling and defer to the trial court's resolution of historical
-8-
facts and its determination concerning credibility and demeanor." Id. The presumption may be
rebutted by a showing that the case was not discussed or that nothing prejudicial about the
accused was said. See Bokemeyer, 355 S.W.3d at 203; Gates v. State, 24 S.W.3d 439, 443 (Tex.
App.—Houston [1st Dist.] 2000, pet. ref d). Because a mistrial is an extreme remedy, it is
appropriate '"only when residual prejudice remains' after less drastic alternatives are explored."
Ocon, 284 S.W.3d at 884-85 (quoting Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App.
2005)). Instructions to the jury are generally considered sufficient to cure most improprieties
occurring during trial. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009).
On appeal, appellant contends the trial court erred by admonishing the jury off-the-record
and that it "failed to issue findings of fact or conclusions of law regarding why the Court
believed that the brief pause in proceedings was sufficient to cure any harm caused by the ex
parte contact between the jurors and the public." Appellant argues his right to an impartial jury
was violated.
But appellant did not request findings of fact or conclusions of law and failed to object or
otherwise express disapproval with the trial court's actions. The court of criminal appeals has
concluded:
The right to a jury verdict entirely untainted by any potential outside influence
strikes us as properly categorized among the "[a]ll but the most fundamental
rights [that] are thought to be forfeited if not insisted upon by the party to whom
they belong." We perceive no reason that a defendant should not be deemed to
have forfeited the protections of Article 36.22 in the event that he becomes aware
of its breach during the course of the trial but fails to call the transgression to the
trial court's attention so that the error may be rectified or, barring that, so that the
defendant can make a timely record for appeal.
Trinidad v. State, 312 S.W.3d 23, 29 (Tex. Crim. App. 2010). Because he did not object to the
trial court's actions, appellant failed to preserve this issue for appellate review. See TEX. R. APP.
P. 33.1(a)(1)(A). Furthermore, it was defense counsel who proposed the off-the-record
admonishment. Appellant should not benefit from a complaint he invited and agreed to. We
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also note that, according to defense counsel's explanation of the communication, the gallery
member in question did not discuss the case with the two jurors or even explain her presence.
Consequently, even if we assumed the error was preserved, no abuse of discretion has been
shown. We overrule the second issue.
Confrontation Clause
In his third issue, appellant argues his rights under the Confrontation Clause were
violated by Barbara Castro's testimony concerning the content of conversations she had with
appellant's girlfriend on the day the complainant was shot.
During the State's case-in-chief, the State called Castro as a witness. The trial court held
a hearing outside the presence of the jury to address appellant's objections to Castro's testimony.
Castro testified at the sub rosa hearing and that she worked as the "house mom" at the Lipstick
Gentlemen's Club, where appellant's girlfriend Riketta worked as a dancer. She testified that
Riketta had previously mentioned that she had a boyfriend known as "Hitman," and that Riketta
had the nickname "Hitman" tattooed on her body.
On December 28, 2010, Riketta used Castro's phone throughout the day. At
approximately 1:30 or 2:00 p.m. that day, a man (who did not identify himself) called Castro's
phone and asked to speak to Riketta. Castro handed the phone to Riketta, who was standing
nearby. Castro recalled that, when Riketta finished the telephone call, she was "real agitative
[sic] and nervous" and seemed to be under the stress or excitement of the call. Riketta told
Castro she needed to leave because "someone had been shot." In her statement to the police the
following day, Castro said that Riketta then told her, "I have to go, because my boyfriend just
shot someone."
Defense counsel objected that Castro's testimony regarding what Riketta said did not
qualify as an excited utterance because Riketta was hot "reacting to the stress of the event." He
-10-
also argued that Castro's testimony was not the best evidence because Riketta had been
subpoenaed to testify. Defense counsel added, "It's a confrontation clause objection as well,
Your Honor." The prosecutor responded that Riketta's availability eliminated any Confrontation
Clause issues. The prosecutor also explained that witness unavailability was not a prerequisite
for admitting a statement as an excited utterance and reiterated that the statement met the
requirements for an excited utterance. After noting that the first sentence of rule 803 specifically
states the exceptions apply even though the declarant is available as a witness, the court
overruled appellant's objection and allowed the testimony.
Castro testified before the jury that she worked as the "house mom" at the Lipstick
Gentlemen's Club, where Riketta had danced for four years. She testified that Riketta used her
cellular phone at various times on December 28, 2010, and that, at approximately 1:30 or 2:00
p.m. that day, Riketta received a call from a male caller. Castro answered the phone initially but
handed the phone to Riketta, and stood next to her as she took the call. Prior to taking the
telephone call, Riketta was "[h]er regular, normal self," "[i]n a good mood," and "[r]eady to go
on the floor," but Castro noticed Riketta's demeanor or manner changed after the call. She was
"just real nervous, agitative [sic]" and "upset" after taking the call. Castro testified that Riketta
also breathed heavily, seemed very startled by whatever she heard on the phone, and paced the
floor. Riketta told Castro: "Oh, mom, I need to leave. I need to leave." When Castro replied,
"You need to calm down and tell me what's wrong," Riketta said: "I need to leave. He shot
somebody." Castro testified that Riketta indicated "her boyfriend" was the person who had shot
someone. Castro also told the jury that Riketta had her boyfriend's nickname, "Hitman,"
tattooed above her left breast.
Castro testified that she told Riketta she could not drive until she calmed down. Riketta
responded that she did not have her car because her "boyfriend had it," and that her boyfriend
-11-
was coming to pick her up in his friend Mark's car. On cross-examination, Castro admitted that
she was not on the telephone during the call and could not hear what was said—only Riketta's
reaction and what Riketta subsequently told her.
On appeal, appellant contends the trial court's decision to allow Castro's testimony
violated his Confrontation Clause rights. He argues that, by calling Castro to testify even though
"Riketta was subpoenaed by the State and was apparently available to testify," the State
impermissibly elicited hearsay instead of having the declarant, Riketta, testify to the statement
that her boyfriend had "shot somebody." Appellant does not contest the statement's
admissibility as an excited utterance; he argues his right to confrontation was violated by the
introduction of a "testimonial statement of an available witness via hearsay."
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). This is particularly so
because the legal ruling of whether a statement is testimonial under Crawford v. Washington is
determined by the standard of an objectively reasonable declarant standing in the shoes of the
actual declarant. Crawford v. Washington, 541 U.S. 36, 52 (2004); Wall, 184 S.W.3d at 742-43.
The Confrontation Clause guarantees the right of an accused "to be confronted with the
witnesses against him." See U.S. CONST. AMEND. VI; Shelby v. State, 819 S.W.2d 544, 546 (Tex.
Crim. App. 1991)(en banc). This right of confrontation is a fundamental right and is applicable
to the states by virtue of the Fourteenth Amendment. Shelby, 819 S.W.2d at 546. The primary
interest protected under the Confrontation Clause is the right of cross-examination. See id. In
Crawford, the United States Supreme Court explored the parameters of this right and concluded
it was a violation of the Sixth Amendment for a court to admit testimonial statements of a
witness who did not appear at trial unless that witness was unavailable to testify and the
-12-
defendant was afforded a prior opportunity for cross-examination. Crawford, 541 U.S. at 68; see
also De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008).
In Crawford, the Court explained that generally a statement should be considered
"testimonial" if it constitutes a "solemn declaration or affirmation made for the purpose of
establishing or proving some fact." Crawford, 541 U.S. at 51. Additionally, the Court explained
that "[a]n accuser who makes a formal statement to government officers bears testimony in a
sense that a person who makes a casual remark to an acquaintance does not." Id.; see also Giles
v. California, 554 U.S. 353, 376 (2008); Davis v. State, 268 S.W.3d 683, 710 (Tex. App.—Fort
Worth 2008, pet. ref d). While the Court in Crawford declined to provide a comprehensive
definition of "testimonial" evidence, it noted that certain classes of "core" statements are
regarded as testimonial, including:
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[.]
Id. at 51-52 (internal citations and quotations omitted). "Statements taken by police officers in
the course of interrogations are also testimonial under even a narrow standard." Id. at 52.
Under the Crawford framework, the primary focus in determining whether hearsay
statements are "testimonial" is on the objective purpose of the interview or interrogation, not the
declarant's expectations. See De La Paz, 273 S.W.3d at 680. "Generally speaking, a hearsay
statement is 'testimonial' when the surrounding circumstances objectively indicate that the
primary purpose of the interview or interrogation is to establish or prove past events potentially
relevant to later criminal prosecution." Id. "In such a situation, the person offering information
is literally bearing testimony." Id.
-13-
The fact that a statement qualifies under a hearsay exception, such as an excited utterance
under rule of evidence 803(2), does not necessarily free it from the strictures of the
Confrontation Clause. See McCarty v. State, 227 S.W.3d 415, 417 (Tex. App.—Texarkana
2007), affd, 257 S.W.3d 238 (Tex. Crim. App. 2008); see also Tex. R. Evid. 803(2) (providing
a hearsay exception for "[a] statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition"). Rather, the
event giving rise to an excited utterance informs the Confrontation Clause analysis and sheds
light on the inquiry as to the statement's testimonial nature. See Wall, 184 S.W.3d at 740;
McCarty, 227 S.W.3d 418; see also Tarver v. State, Nos. 05-06-01091-CR & 05-06-01667-CR,
2008 WL 2514312, at *3 (Tex. App.—Dallas Nov. 5, 2008, pet. refd) (not designated for
publication) (statement made by witness that defendant "had a gun" was not testimonial and
could be admitted under Confrontation Clause as excited utterance exception).
In this case, we cannot conclude the complained-of statement was "testimonial" under
Crawford. Nothing in the statement or in the circumstances under which it was made would lead
an objective witness reasonably to believe the statement would be available for use at a later
trial. The statement was not made in any kind of formal setting or structured environment, nor
was it a response to a police interrogation, inquiry, or investigation. On the contrary, when
viewed objectively, the statement appears to have been an excited utterance made to a co-worker.
The statement, taken in context, explained why Riketta seemed startled by whatever she had
heard on the phone and why she appeared nervous, agitated, upset, and paced the room. Under
these circumstances, we cannot conclude the trial court erred by admitting the statement as an
excited utterance. We overrule appellant's third issue.
Improper Jury Argument
In his fourth issue, appellant contends the trial court "committed reversible error by
-14-
failing to remedy the State's improper closing argument." Permissible jury argument generally
falls into one of four areas: (1) summation of the evidence; (2) reasonable deductions from the
evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement.
Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010); Berry v. State, 233 S.W.3d 847,
859 (Tex. Crim. App. 2007). Counsel is generally given wide latitude in drawing inferences from
the evidence as long as they are reasonable, fair, legitimate, and offered in good faith. Shannon
v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996).
Appellant takes issue with two portions of the State's closing argument. During the
State's closing argument, appellant's trial counsel objected to speculation and arguing outside
the record when the prosecutor stated:
[PROSECUTOR]: .... Do you recognize who Hitman is? Do you recognize him
yet? Are you starting to see him? Because the other day, you probably didn't.
When he starts talking about "you better lace her up"—just so we're clear, he's
talking about getting witnesses ready to come in here and put one over on you
twelve citizens.
[DEFENSE COUNSEL]: Your Honor, I'm going to object to speculation.
Arguing outside the evidence.
[PROSECUTOR]: It's a reasonable deduction from the evidence.
THE COURT: The jury will recall the evidence as they heard it. Proceed.
Later, during the rebuttal portion of the State's closing argument, the prosecutor made the
following comments:
[PROSECUTOR]: Now, let's go through all the lies that he told you.
When he first got on the stand, what's the first thing he says? "I heard about him
shooting two people across town in Irving just a week before this happened, and I
was so terrified for my life. Because I saw the girl he shot. She was walking on a
little walker." He even tried to make the little hand motions. "She was terrified.
She was shaking. She thought I was coming to finish thejob." Now, granted, I'd
be scared of somebody with a tattoo named "Hitman" that's a drug lord out of my
area. But he wants you to believe that she thought he was working with Tyvanti
to come and kill her.
Ladies and gentlemen, what did those jail calls show you? What did
Detective Wyatt tell you? She was shot December 21st, and she had been
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hospitalized up until at least the point where the detective interviewed her on
December 29th. That's one day after he killed Tyvanti.
[DEFENSE COUNSEL]: I object to a misstatement of the evidence.
COURT: The jury will recall the evidence, as they heard it. Proceed.
According to the record, following each of appellant's objections, the trial court did not
rule on the objections. The trial court stated: "The jury will recall the evidence as they heard it.
Proceed." An objection to argument must be pressed to the point of procuring a ruling or the
alleged error is waived on appeal. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App:
1996); DeRusse v. State, 579 S.W.2d 224, 235 (Tex. Crim. App. 1979). The court of criminal
appeals has explained:
We have previously said that while the "traditional and preferred procedure" for a
party to preserve error is to (1) object in a timely manner, (2) request an
instruction to disregard, and (3) move for a mistrial if the instruction to disregard
seems insufficient, such a sequence is not essential to preserve complaints for
appellate review. The only essential requirement to ensure preservation is a
timely, specific request that is refused by the trial court.
Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007) (internal citations omitted); see also
TEX.R. APP. P. 33.1(a).
After the trial court instructed the jury, appellant did not ask for any further relief. In this
instance, the trial court's response was not a ruling on the objection and it is insufficient to
preserve error. See DeRusse, 579 S.W.2d at 235; see also Mayberry v. State, 532 S.W.2d 80, 84
(Tex. Crim. App. 1976) (op. on reh'g) ("D]ury will recall the evidence" does not preserve error);
Nichols v. State, 504 S.W.2d 462, 464-65 (Tex. Crim. App. 1974) (same). Because appellant did
not request further relief that was refused by the trial court, he failed to preserve his fourth issue
for our review. See TEX. R. App. P. 33.1(a). We overrule appellant's fourth issue.
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We affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
120223F.U05
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Court of Appeals
Jfftftfj Htstrkt of Qtexas at Ballas
JUDGMENT
TIWIAN LAQUINN SKIEF, Appellant On Appeal from the Criminal District Court
No. 5, Dallas County, Texas
No. 05-12-00223-CR V. Trial Court Cause No. F10-35936-L.
Opinion delivered by Justice Myers.
THE STATE OF TEXAS, Appellee Justices Bridges and FitzGerald
participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 21st day of May, 2013.
/Lana Myers/
LANA MYERS
JUSTICE
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