Timothy Lee Barnum v. the State of Texas ( 2022 )

AFFIRMED and Opinion Filed July 15, 2022
SIn The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00275-CR
TIMOTHY LEE BARNUM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 15th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 069939
MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Nowell
Opinion by Justice Partida-Kipness
Appellant Timothy Lee Barnum appeals his murder conviction. In five issues,
Barnum contends his conviction should be reversed and the case remanded for a new
trial because the trial court erred by denying his request to appoint a competency
evaluator and by admitting hearsay testimony of two witnesses. Finding no error, we
affirm the trial court’s judgment.
BACKGROUND
On October 31, 2017, Stacy Allen became concerned when her husband,
Robert Allen, had not returned home from work. When Robert did not answer his
cell phone or work phone, Stacy decided to drive to the plumbing store where Robert
worked to see if he was there. When she arrived, she found Robert lying dead just
inside the back door. His cause of death was determined to be a gunshot wound.
Barnum had a child with Robert’s daughter and had a turbulent relationship with
Robert, and he soon came under suspicion for Robert’s murder. After an
investigation, Barnum was indicted for first degree murder.
Shortly before trial, Barnum’s counsel asked the court to appoint an expert to
evaluate Barnum’s competency to stand trial. Barnum’s sole support for this request
was an affidavit that described an incident in which Barnum appeared disoriented
and delusional. The trial court denied the request and commenced the trial.
The State’s theory at trial was Barnum had conspired with his cousin, Tyrone
Sommers, to murder Robert. The State alleged that Sommers agreed to commit the
murder in exchange for a house and a car that Barnum owned. The State offered the
testimony of multiple witnesses, including Barnum’s father, Herman, and Andrew
Smith, an inmate who had served time with both Barnum and Sommers. Four of
Barnum’s appellate issues challenge the admission of portions of Herman’s and
Smith’s testimony.
Herman testified that after the murder took place, he drove by a house that
Barnum once owned and found Sommers out front. During their conversation,
Sommers made incriminating statements that connected him and Barnum to the
crime, including the following:
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 On the night of the murder, Barnum and his then-girlfriend Haley
Lummus dropped Sommers off near the plumbing store;
 When Sommers arrived at the store, he entered through the back
door and surprised Robert at his desk;
 Sommers “took care of that” for Barnum and “busted him,”
which Herman took to mean Sommers shot Robert for Barnum;
 After the murder, Barnum and Lummus picked Sommers up near
a car wash, “roughed up” the gun, and threw it in a river;
 Barnum gave Sommers the house and a Cadillac in exchange for
the murder; and
 Barnum asked Sommers to murder Robert in the past.
The jury learned that Herman received immunity from a felony charge in exchange
for his testimony.
Smith testified that he and Barnum became “pretty close” during their time as
cell mates in the Grayson County Jail. According to Smith, Barnum made multiple
incriminating statements to him during that time:
 Barnum arranged for Sommers to kill “[h]is baby momma’s
father” for interfering in Barnum’s relationship with his child;
 Sommers committed the murder in exchange for a house and two
ounces of methamphetamine;
 Barnum dropped off Sommers before the murder and picked him
up after; and
 Barnum would not have been in trouble if Sommers had not
talked to the authorities.
Smith also knew Sommers. He testified that in April 2019, Sommers also made
several incriminating admissions to him in jail:
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 Sommers shot Robert in exchange for a house;
 Barnum wanted Robert dead because Robert was a racist and
would not let Barnum see his child;
 Barnum dropped Sommers off near the plumbing business where
he committed the murder;
 After the murder, Barnum and “a white girl” picked him up near
a car wash, and they threw the murder weapon into a lake.
After hearing the evidence, the jury found Barnum guilty of murder, found a
habitual offender enhancement to be true, and assessed punishment at life
imprisonment. The trial court denied Barnum’s motion for new trial, and this appeal
followed.
DISCUSSION
Barnum asserts five issues on appeal that can be placed in three categories.1
First, Barnum contends the trial court erred by denying his request for a competency
assessment. Second, Barnum argues that Sommers’s statements to Herman and
Smith should not have been admitted as statements against interest through Herman
and Smith. Third, Barnum maintains admission of those statements violated
1
The issues presented in this appeal are drawn from a brief filed by Barnum’s appellate counsel.
However, after that brief and the State’s brief were filed, and after the case was submitted and orally argued,
Barnum filed a motion for his counsel to withdraw so that he could proceed pro se on appeal. We deny the
motion as untimely. “The right of self-representation is not a license to capriciously upset
the appellate timetable or to thwart the orderly and fair administration of justice.” Ex parte Thomas, 906
S.W.2d 22, 23–24 (Tex. Crim. App. 1995). Allowing Barnum to assert his right of self-representation after
so long “and only after he had read his appellate counsel’s briefs would unduly hamper the administration
of justice.” Id.; see Beltran v. State, No. 03-03-00599-CR, 2005 WL 171179, at *2 n.1 (Tex. App.—Austin
Jan. 27, 2005, no pet.) (mem. op., not designated for publication) (“It is inconsistent with the orderly
administration of justice to entertain a request for self-representation made after all briefs have been filed
and the appeal has been submitted for decision.”).
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Barnum’s constitutional rights of confrontation and cross-examination. We address
each issue in turn.
I. Competency
In his first issue, Barnum contends the trial court erred by refusing to appoint
an expert to evaluate his competency. We review a trial court’s decision regarding
an informal competency inquiry for an abuse of discretion. Montoya v. State, 291
S.W.3d 420, 426 (Tex. Crim. App. 2009), superseded by statute on other grounds
as recognized in Turner v. State, 422 S.W.3d 676, 692 & n.31 (Tex. Crim. App.
2013). In conducting our review, we do not substitute our judgment for that of the
trial court, but we determine whether the trial court’s decision was arbitrary or
unreasonable. Id. The prosecution of an incompetent defendant violates due process.
Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018).
An accused is presumed competent to stand trial unless proved incompetent
by a preponderance of the evidence. TEX. CODE CRIM. PROC. art. 46B.003(b). A
defendant is incompetent to stand trial if he does not have (1) sufficient present
ability to consult with the person’s lawyer with a reasonable degree of rational
understanding or (2) a rational as well as factual understanding of the proceedings
against the person. Id. art. 46B.003(a).
The trial court employs a two-step process to evaluate whether a defendant is
incompetent to stand trial. Boyett, 545 S.W.3d at 563. The first step is an informal
inquiry; the second step is a formal competency trial. Id. An informal inquiry is
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required when any credible source suggests the defendant may be incompetent. TEX.
CODE CRIM. PROC. art. 46B.004(a), (c), (c-1). At the informal inquiry stage, there
must be “some evidence from any source that would support a finding that the
defendant may be incompetent to stand trial.” Boyett, 545 S.W.3d at 563 (quoting
TEX. CODE CRIM. PROC. art. 46B.004(c)). This standard requires more than a scintilla
of evidence that rationally may lead to a conclusion of incompetency. Id. at 564. The
trial court must consider only evidence of incompetency, and it must not weigh
evidence of competency against the evidence of incompetency. Id. Further, some
evidence must be presented at the informal inquiry stage to show that a defendant’s
mental illness is the source of his inability to participate in his own defense. Id. It is
not enough to present evidence of either a defendant’s mental illness alone or his
inability to assist counsel; there must be some evidence indicating that the
defendant’s inability to rationally engage with counsel is caused by his mental
illness. Id.Factors to consider include whether a defendant can understand the charges
against him and the potential consequences of the pending criminal proceedings;
disclose to counsel pertinent facts, events, and states of mind; engage in a reasoned
choice of legal strategies and options; understand the adversarial nature of the
criminal proceedings; exhibit appropriate courtroom behavior; and testify. Turner v.
State, 570 S.W.3d 250, 262 (Tex. Crim. App. 2018). Additional considerations may
include whether the defendant has a mental illness or an intellectual disability,
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whether the identified condition has lasted or is expected to last continuously for at
least one year, whether medication is necessary to maintain the defendant’s
competency, the degree of impairment resulting from the mental illness or
intellectual disability, and the specific impact on the defendant’s capacity to engage
with counsel in a reasonable and rational manner. Laflash v. State, 614 S.W.3d 427,
432 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (order) (quoting TEX. CODE
CRIM. PROC. art. 46B.024(2)–(5)).
If, after an informal inquiry, the trial court determines that evidence exists to
support a finding of incompetency, then the trial court must order a psychiatric or
psychological competency examination to determine whether the defendant is
incompetent to stand trial and, in most situations, must hold a formal competency
trial. TEX. CODE CRIM. PROC. arts. 46B.005(a), (b), 46B.021(b)).
Barnum’s sole evidence regarding incompetency was an affidavit drafted by
a court-appointed investigator named Aaron Bucy. The affidavit described a meeting
at which Bucy observed Barnum behaving strangely shortly before trial. Bucy
explained that he and Barnum’s counsel had gone to visit Barnum in jail. Barnum
was brought to the visitation room, but instead of immediately entering, he stood
outside for a moment and peered into the room. Then Barnum asked the guard to
stay with him, but the guard declined. When the meeting began, Barnum repeatedly
accused counsel of conspiring with the State in an effort to kill him, and he reported
that he was hearing voices. Bucy testified that Barnum appeared not to recognize
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him even though the two had met before. Based on this affidavit, Barnum asked the
trial court to appoint an expert to evaluate his competency. The trial court denied the
request. On appeal, Barnum argues that the affidavit was enough evidence to require
the appointment of a competency expert. We disagree.
The affidavit says nothing about whether Barnum had a condition that
prevented him from grasping the nature of the charges against him, their
consequences, or the adversarial proceeding in which the charges would be tested
for validity. There was no evidence that the incident described in the affidavit
indicated a broader inability to communicate with counsel, to engage in reasoned
choices, or to testify if he saw fit. The affidavit does not suggest that Barnum’s
disorientation and paranoia on the afternoon in question required medication or
could be expected to last continuously for a year.2
The only thing the affidavit shows is one incident of odd behavior. We have
consistently rejected claims that the trial court abused its discretion by denying a
competency evaluation or trial when the suggestion of incompetency rests primarily
on one aberrant episode shortly before trial, at least in the absence of any evidence
connecting the episode with an inability to consult with counsel or understand the
2
At oral argument, Barnum’s counsel mentioned for the first time that Barnum had previously been
diagnosed with schizophrenia. However, Barnum did not present evidence of this condition in the trial
court. We, therefore, do not consider it in our analysis. See TEX. R. APP. P. 39.2 (stating that at oral
argument, “[a] party should not refer to or comment on matters not involved in or pertaining to what is in
the record”); Ex parte Gray, 126 S.W.3d 565, 569 n.4 (Tex. App.—Texarkana 2003, pet. ref’d, untimely
filed) (attaching no weight to a factual representation at oral argument because “there is nothing in the
record before us to support this contention”).
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proceedings. Ware v. State, No. 05-19-00365-CR, 2020 WL 4499797, at *1–2 (Tex.
App.—Dallas Aug. 5, 2020, no pet.) (mem. op.) (rejecting incompetency claim
based on evidence that (1) the defendant was bipolar and on the schizophrenia
spectrum, and (2) when the defendant was asked to make a punishment election, he
responded by telling the trial court about his prayers and his feeling that his life was
in danger); Minor v. State, Nos. 05-19-00575-CR, 05-19-00576-CR, 2020 WL
2519736, at *4–5 (Tex. App.—Dallas May 18, 2020, no pet.) (mem. op., not
designated for publication) (holding that there was no proof of incompetency where
only evidence was the defendant’s claim that he had seen and talked to his deceased
mother just before trial); Lomoglio v. State, No. 05-18-01091-CR, 2019 WL
7288741, at *2 (Tex. App.—Dallas Dec. 30, 2019, no pet.) (mem. op., not designated
for publication) (affirming denial of a competency evaluation where the central
evidence of incompetency was that the defendant “experienced auditory
hallucinations the previous night”); see also Lindsey v. State, 544 S.W.3d 14, 24
(Tex. App.—Houston [14th Dist.] 2018, pet. ref’d) (“Appellant’s isolated instances
of confusion did not show that appellant was incompetent to stand trial.”).
The same analysis applies here. In the absence of any evidence connecting
Barnum’s one incident of unusual behavior with a mental condition that caused an
inability to rationally engage with counsel or understand the proceedings, this
behavior is no evidence of incompetence. See Boyett, 545 S.W.3d at 564.
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Nor do the words that the trial court used to deny Barnum’s request show
reversible error. Barnum argues that when he requested the appointment of an expert,
the trial court responded in a way that shows the court was wrongly considering
evidence of competence when making its determination rather than focusing solely
on the evidence of incompetence as it was required to do:
THE COURT: Over the course of this case, it’s gone on at least three
years, I have allowed Mr. Barnum to address the Court more than I
normally would. He certainly always seemed competent. There’s
absolutely zero evidence he’s incompetent, and he got up and made
statements and testified during the pre-trial last Tuesday, where he went
through chronology, he knew dates. He certainly was one hundred
percent competent, as far as I’m concerned, and that’s why I’m not
going to order the mental examination.
We agree these comments indicate the trial judge may have considered evidence of
Barnum’s competence when making his decision. However, we conclude this was
not reversible error.
A claim of reversible error on direct appeal should be rejected if the trial
court’s ruling is correct on any theory of law applicable to the case, even if the trial
court did not purport to rely on that theory and the prevailing party did not explicitly
raise the theory. State v. Castanedanieto, 607 S.W.3d 315, 327 (Tex. Crim. App.
2020); see Cuellar v. State, Nos. 11-15-00078-CR, 11-15-00079-CR, 11-15-00080-
CR, 2017 WL 2484352, at *3 (Tex. App.—Eastland June 8, 2017, pet. ref’d) (mem.
op., not designated for publication) (applying this rule to a competency issue). Here,
there was no evidence of incompetence. That lack of proof on its own justifies the
denial of Barnum’s request to appoint a competency evaluator. Because the trial
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court’s ruling is correct under an alternative theory, the trial court’s remarks
concerning the evidence of competence do not constitute reversible error. We
overrule Barnum’s first issue.
II. Statements Against Interest
In his second and fourth issues, Barnum contends the trial court abused its
discretion by admitting hearsay testimony under the exception for statements against
interest. Barnum complains of testimony given by Herman and Smith regarding
incriminating statements made by Barnum and Sommers, his coconspirator.
According to Barnum, Sommers’s statements were not truly against his interests.
Rather, the statements served Sommers’s interests because they shifted blame away
from Sommers and onto Barnum.
Generally, the hearsay rule excludes any out-of-court statements offered to
prove the truth of the matter asserted. TEX. R. EVID. 801(d), 802. An exception to
the hearsay rule allows admission of statements made against the declarant’s interest.
TEX. R. EVID. 803(24). Rule 803 sets out a two-step foundation for the admissibility
of statements against interest. Walter v. State, 267 S.W.3d 883, 890 (Tex. Crim. App.
2008). First, the trial court must determine whether the statement, considering all the
circumstances, subjects the declarant to criminal liability and whether the declarant
realized this when he made that statement. Id. at 890–91. Second, the court must
determine whether there are sufficient corroborating circumstances that clearly
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indicate the trustworthiness of the statement. Id. at 891. Self-inculpatory statements
fall into three general categories:
Some inculpate only the declarant (e.g., “I killed Joe.”); others
inculpate equally both the declarant and a third party, such as a co-
defendant (e.g., “We killed Joe.”); still others inculpate both the
declarant and third party, but also shift blame by minimizing the
speaker’s culpability (e.g., “We robbed the bank, and Dan killed Joe,
the bank teller.”). A confession, conversation or narrative, even a short
one, might mix together all three types of statements.
Id. at 891–92. Statements that are purely against the declarant’s interest and
collateral “blame-sharing” statements may be admissible under Rule 803(24) if
corroborating circumstances clearly indicate their trustworthiness. Id. at 896.
“Blame-shifting” statements that minimize the speaker’s culpability are not, absent
extraordinary circumstances, admissible under the rule. Id. “[T]he trial judge is
obligated to parse a generally self-inculpatory narrative and weed out those specific
factual statements that are self-exculpatory or shift blame to another.” Id. at 897.
For example, in Walter, the declarant claimed that he merely acted as a
lookout while the defendant committed three murders during a robbery. Id. at 899.
The Court of Criminal Appeals held that these were inadmissible blame-shifting
statements because they had the effect of minimizing the declarant’s role in the crime
(a lookout) while portraying the defendant as the more blameworthy player (the one
who pulled the trigger). Id.But not all statements differentiating between who participated in and who
carried out a crime are inadmissible. See, e.g., Mangiafico v. State, No. 05-13-01490-
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CR, 2015 WL 2394640, at *6 (Tex. App.—Dallas May 18, 2015, no pet.) (mem. op.,
not designated for publication). In Mangiafico, we held that even though the
declarant described the defendant as the killer, the declarant was not shifting away
blame because he simultaneously described himself as the plot’s mastermind, who
had developed alibis for the participants and adjusted the plan during its offing in
order to avoid detection. Id.We find Mangiafico applicable here. Sommers implicated himself as the one
who pulled the trigger in exchange for compensation, but his statements show that
Barnum was the mastermind who hatched the murder-for-hire plot, paid Sommers
to perform it, and facilitated the scheme every step of the way. While Sommers’s
statements differentiated his own role in the crime from the defendant’s role, no
blame was shifted. Rather, much like in Mangiafico, the trial court could have fairly
concluded that the statements put the declarant-triggerman and the defendant-
mastermind on roughly equal footing in terms of perceived culpability. Thus,
Sommers’s blame-sharing statements satisfy the first stage of the foundation for a
statement against interest. Barnum does not challenge the second stage of the
foundation, which concerns corroborating circumstances. Accordingly, we overrule
Barnum’s second and fourth issues.
III. Confrontation Clause
In his third and fifth issues, Barnum argues that the trial court wrongly
admitted testimony in violation of his constitutional right to confront the witnesses
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against him. Barnum again targets the testimony of Herman and Smith, who relayed
incriminating statements by Barnum and Sommers. The State counters that the
statements in question were not testimonial and that Barnum’s confrontation rights
were not violated. We agree with the State.
“In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him . . . .” U.S. CONST. amend. VI. In
accordance with this right, “testimonial” out-of-court statements offered against the
accused are inadmissible unless the prosecution can show that the out-of-court
declarant is presently unavailable to testify and the accused had a prior opportunity
to cross-examine him. Langham v. State, 305 S.W.3d 568, 575–76 (Tex. Crim. App.
2010). Although we defer to a trial court’s determination of historical facts and
credibility, we review de novo whether a statement is testimonial. Wall v. State, 184
S.W.3d 730, 742 (Tex. Crim. App. 2006).
“While the exact contours of what is testimonial continue to be defined by the
courts, such statements are formal and similar to trial testimony.” Burch v. State, 401
S.W.3d 634, 636 (Tex. Crim. App. 2013). Generally, a hearsay statement is
testimonial when the surrounding circumstances objectively indicate that the
statement is procured with the primary purpose of establishing or proving past events
potentially relevant to later criminal prosecution. De La Paz v. State, 273 S.W.3d
671, 680 (Tex. Crim. App. 2008). At a minimum, testimonial statements include (1)
ex parte in-court testimony or its functional equivalent, such as affidavit testimony,
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custodial examinations, prior testimony that the accused was unable to cross-
examine, or similar pretrial statements that declarants would reasonably expect to be
used prosecutorially; (2) extrajudicial statements contained in formalized
testimonial materials, such as affidavits, depositions, prior testimony, or
confessions; and (3) 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. Langham, 305 S.W.3d at 576. “[T]he most important instances
in which the Clause restricts the introduction of out-of-court statements are those in
which state actors are involved in a formal, out-of-court interrogation of a witness
to obtain evidence for trial.” Michigan v. Bryant, 562 U.S. 344, 358 (2011). In
assessing a statement’s primary purpose, we consider “all of the relevant
circumstances,” id. at 369, often including the timing and setting of the challenged
statement. Lollis v. State, 232 S.W.3d 803, 806 (Tex. App.—Texarkana 2007, pet.
ref’d).
When a statement is not procured with a primary purpose of creating an out-
of-court substitute for trial testimony, the admissibility of the statement is the
concern of state and federal rules of evidence, not the Confrontation Clause. Bryant,
562 U.S. at 358–59. Thus, a person’s informal statements to his friends are
nontestimonial: “An 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.” Crawford v. Washington, 541 U.S. 36, 51 (2004).
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Sommers’s statements to Herman fall into the category of casual remarks to
acquaintances. The challenged statements were made during a conversation between
cousins, not between Sommers and a state agent. See Ohio v. Clark, 576 U.S. 237,
249 (2015) (“Statements made to someone who is not principally charged with
uncovering and prosecuting criminal behavior are significantly less likely to be
testimonial than statements given to law enforcement officers.”). The conversation
took place in front of the home that Sommers had newly acquired from Barnum, not
in a stationhouse, a courtroom, or any other sort of “formal and structured setting
that would lend itself to being considered testimonial.” See Crawford v. State, 595
S.W.3d 792, 803 (Tex. App.—San Antonio 2019, pet. ref’d). The fact that Herman
later received immunity in exchange for his testimony plays no part in how the
objectively reasonable declarant would read the situation as it unfolded, and this
circumstance does not retroactively instill their conversation with the primary
purpose of making Sommers’s incriminating statements available for use at trial. See
id. (relying in part on the timing of statements that were made before a crime and its
subsequent investigation to conclude that the statements were not testimonial);
Marmolejo v. State, No. 08-11-00108-CR, 2013 WL 1846672, at *15 (Tex. App.—
El Paso Apr. 30, 2013, no pet.) (not designated for publication) (concluding that an
out-of-court declarant’s statements were not testimonial even though the witness
who heard the statements later received immunity in exchange for an agreement to
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testify). In short, there was no objective indication that the statements were
testimonial. See De La Paz, 273 S.W.3d at 680.
Barnum’s and Sommers’s statements to Smith, the jailhouse informant,
appear to warrant similar treatment, at least based on the relationship between the
three men. Barnum, for instance, was cell mates with Smith for roughly a year and,
according to Smith, the two “became pretty close” over that time. Their relationship
suggested familiarity, not the sort of formality that is the hallmark of a testimonial
exchange. And there was no evidence that Smith was acting on behalf of the State
when Barnum and Sommers disclosed the facts of the case to him.
Barnum argues that these statements should be treated differently because of
the location in which they were made, i.e., a correctional facility. Barnum argues the
fact that the statements were made in an institutional setting should, by itself, render
the statements testimonial. We disagree.
In Williams v. State, the court rejected an identical argument. 606 S.W.3d 48,
58 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d). There, the defendant was
charged with murder, and an inmate-informant testified that he heard the defendant’s
co-conspirator make incriminating statements while they were in jail together. Id. at
53–54. The defendant objected to this testimony on confrontation grounds, but the
objection was overruled. Id. at 57. On appeal, the defendant argued that “all
statements one inmate makes to another about a case are made with the knowledge
that the statement could be available for potential use at a later criminal prosecution,”
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and should thus be considered testimonial. Id. at 58. The appellate court disagreed
and rejected the notion that the co-conspirator’s statements should be viewed as
testimonial simply because they were made in a correctional facility. Id. As support,
the court cited multiple cases in which the content of phone conversations from jail
were held to be nontestimonial, even though the conversations were had in
correctional facilities and were recorded. See id. at 58 & n.3 (citing Rodriguez v.
State, Nos. 07-15-00412-CR, 07-16-00124-CR, 2016 WL 7439189, at *3 (Tex.
App.—Amarillo Dec. 21, 2016, no pet.) (mem. op., not designated for publication),
and then citing Townsend v. State, No. 03-17-00495-CR, 2018 WL 3978489, at *3
(Tex. App.—Austin Aug. 21, 2018, no pet.) (mem. op., not designated for
publication)).
Barnum urges us not to follow Williams and attempts to distinguish the jail-
call cases upon which Williams relied. Barnum recognizes the jail-call cases
involved recorded conversations, unlike the unrecorded remarks made to Smith here.
Barnum maintains, however, that because these unrecorded remarks were less
verifiable than recorded remarks would be, the unrecorded statements in this case
were more in need of testing through cross-examination and were more apt to be
deemed testimonial than a recorded call.
This distinction misses the mark. The definition of what is testimonial does
not hinge on whether the statements in question were more or less worthy of
credibility or cross-examination. See Crawford, 541 U.S. at 60 (abrogating Ohio v.
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Roberts, 448 U.S. 56, 66 (1980) and its rule that generalized “indicia of reliability”
could save a statement from exclusion under the Confrontation Clause). Rather,
whether the statements are testimonial depends on if they were made under
circumstances that objectively indicate a primary purpose to preserve the statements
for later use in prosecution. De La Paz, 273 S.W.3d at 680. In the jail-call cases, the
statements were recorded, which makes them more likely to be available for trial
than the unrecorded conversations at issue here. Even so, those recorded jail calls
were held not to be testimonial, which only makes the unrecorded statements in this
case appear less testimonial by comparison. We find Williams persuasive and adopt
its holding: the fact that the co-conspirator and the informant “were incarcerated at
the time of their conversations did not make the statements testimonial.” See 606
S.W.3d at 58.
This holding is reinforced by Smith v. State, 297 S.W.3d 260, 276 (Tex. Crim.
App. 2009). Smith held that when a prison official issued a report on an inmate’s
disciplinary record, this report was not testimonial insofar as it simply set out “a
sterile and routine recitation of an official finding or unambiguous factual matter
such as . . . a bare-bones disciplinary finding.” Id. Although the declarant was a
prison official making formal statements in a prison, most of his statements were
nonetheless held to be nontestimonial. See id. Thus, the fact that a declarant speaks
from within prison walls does not by necessity bring his statements within the ambit
of the Confrontation Clause. See id.–19–
We conclude the statements in question were not testimonial and, therefore,
admission of these statements did not offend the Constitution. We overrule
Barnum’s third and fifth issues.
CONCLUSION
Barnum introduced no evidence of incompetency below. We, therefore,
conclude the trial court properly denied Barnum’s request for the appointment of a
competency evaluator. As for Barnum’s evidentiary complaints, we conclude the
admission of the testimony of Herman and Smith did not violate the rules of evidence
or the Confrontation Clause. Accordingly, we overrule Barnum’s appellate issues
and affirm the trial court’s judgment.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
Pedersen, III, J., dissenting.
Do Not Publish
TEX. R. APP. P. 47.2(b)
210275F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
TIMOTHY LEE BARNUM, On Appeal from the 15th Judicial
Appellant District Court, Grayson County,
Texas
No. 05-21-00275-CR V. Trial Court Cause No. 069939.
Opinion delivered by Justice Partida-
THE STATE OF TEXAS, Appellee Kipness. Justices Pedersen, III and
Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 15th day of July, 2022.
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