
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

IN THE MATTER OF M.H.V.-P.
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No. 08-09-00291-CV

Appeal from the

65th District Court

of El Paso County, Texas

(TC# 05,00253)

O P I N I O N

 On September 23, 2009, a jury determined that M.H.V.-P., Appellant, engaged in delinquent
conduct by committing the offense of assault, and the trial court placed him on probation until his
eighteenth birthday, which occurred approximately six months later on April 4, 2010.  In his sole
issue on appeal, Appellant contends that the trial court violated his confrontation rights by admitting
a witness statement into evidence at the adjudication hearing.  For the reasons that follow, we affirm.
BACKGROUND
 On February 16, 2009, the complainant was at school when Appellant, a much bigger person
than he, called him a "faggot" as he walked past Appellant in the school hallway.  Appellant started
walking behind the complainant and then pushed him.  The complainant attempted to keep walking,
but Appellant pushed him again.  At that point, the complainant turned around and asked what his
problem was.  Appellant responded that he did not like him and punched the complainant in the face
with his fist.  The complainant tried to defend himself by pushing Appellant back, but Appellant
lifted him from his legs and pushed him down to the floor.  Appellant continued to punch the
complainant all over his body and stomped on him with his feet, as well.  The assault only stopped
when two teachers pushed Appellant away.
	L.C., a classmate, witnessed the assault.  However, at the time of trial, she did not remember
anything about the fight, nor did she remember what she told the school security officer about the
assault.  At that point, the State sought to introduce L.C.'s written statement based on Rule 804(a)(3),
which provides for the admission of hearsay when the declarant cannot remember what occurred. 
See Tex. R. Evid. 804(a)(3).  Appellant, however, objected that admission of the statement would
violate his rights to confrontation.  The trial court overruled the objection, but the parties agreed that
only a portion of L.C.'s statement would be admitted.  The statement, as admitted, read:
[Appellant] saw [the complainant] and followed him and started pushing him and
hitting [the complainant] out of nowhere.  And [the complainant] fell to the floor, so
[the complainant] got up and defended himself cause [sic] he was getting hit by
[Appellant].  [Appellant] just started to hit [the complainant] and thats [sic] not right.

	S.M., the complainant's former girlfriend, did remember the fight.  S.M. recalled that she was
in class when L.C. entered and told her that Appellant was fighting with the complainant.  S.M. then
went into the hallway and saw the boys punching each other.  When Appellant stopped, S.M. noticed
that the complainant's lip was bleeding.
	Kelly Harris, a teacher, recalled that she was in her classroom when she heard some girls
yelling, "[Appellant], stop."  Harris saw Appellant leave her classroom, and when Harris got outside
her classroom door, she saw Appellant hitting the complainant.  Harris noticed that the complainant
tried to push Appellant away, in a defensive manner.  But Appellant "flipped" the complainant onto
the floor.  Despite Harris' instructions to stop hitting the complainant, Appellant continued on,
striking the complainant "numerous" times.  The assault did not stop until a male teacher, Gerardo
Saucedo, was able to pull Appellant off of the complainant.
	Saucedo testified that upon leaving his classroom, he recalled seeing Appellant punch the
complainant "over and over again."  Saucedo noticed that the complainant had his hands over his
head, trying to defend himself.  Saucedo then got in the middle of both of them and tried to push
Appellant back.  When the assault ceased, Appellant tried to leave the school and go home, but
Saucedo told him to stay.  Saucedo took Appellant into Harris' classroom, and Appellant told him
that "they just got in a fight."
	Cynthia Britton, another teacher, stepped into the hallway, having heard Harris yell, and saw
Appellant "beating" the complainant, who was lying on the floor.  Specifically, Britton saw
Appellant holding onto the complainant's shirt and "viciously beating him," despite the
complainant's attempts to get away.  Appellant only stopped when she saw Saucedo pull him off of
the complainant.  After the assault, Britton followed Appellant and Saucedo into Harris' classroom. 
There, she asked why he was fighting, and Appellant responded that the complainant "flipped" him
off and he was taught to stand up for himself.  Britton replied, "Wow, you're a hothead.  That caused
you to go and beat somebody up?  Because he flipped you off?"
	Ignacio Estorga, the assistant principal, asked the teachers to provide statements as to what
happened.  Estorga also spoke with Appellant about the incident, and Appellant told him that he ran
after the complainant,  after the complainant flipped him off.  According to Appellant, the
complainant punched him first, and then they started fighting.  Rita Rivera, Appellant's mother,
recalled seeing a bruise on Appellant's cheek when she went to pick him up from school after the
incident occurred.
	At trial, Appellant testified in his defense.  He claimed that he was inside Harris' classroom
talking to L.C. about Jeffrey Starr, a celebrity.  As Appellant asked L.C., "Isn't he a faggot," referring
to Starr, the complainant walked by.  When the boys made eye contact, Appellant stated that
"tempers were flaring," and the complainant gave Appellant the finger.  Although Appellant knew
that the complainant was not very intimidating - indeed, the complainant was much smaller than him
- Appellant left the classroom and asked the complainant, "What's your problem," and the
complainant responded that "you're a bitch."  Appellant next claimed that the complainant pushed
him, so he pushed the complainant back.  Appellant then turned to go back into the classroom, but
he heard the complainant take a step towards him.  When Appellant turned around, he alleged that
the complainant punched him on the chin.  Thinking the complainant should get what he deserved,
Appellant then started fighting with the complainant.  Appellant "put" the complainant on the
ground, and Appellant fell on top of him.  They only stopped fighting when Saucedo separated them. 
According to Appellant, he simply defended himself.DISCUSSION
	In his sole issue presented for our review, Appellant contends that the trial court erred by
admitting L.C.'s statement into evidence over his Confrontation Clause objection.  The State
responds that the statement was properly admitted under Rule 804(a)(3), and that in the alternative,
if the statement was erroneously admitted, the error was harmless.
Standard of Review
	Generally, we review a trial court's decision to admit evidence under an abuse-of-discretion
standard.  Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Coffin v. State, 885
S.W.2d 140, 149 (Tex. Crim. App. 1994).  And so long as the decision to admit that evidence is
within the zone of reasonable disagreement, we will not find an abuse of discretion. Montgomery
v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (op. on reh'g).  However, in reviewing a
Confrontation Clause objection to the proffered evidence, we review the trial court's legal ruling de
novo.  Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).
Applicable Law
	The United States Constitution guarantees an accused, in all federal and state prosecutions,
the right "to be confronted with the witnesses against him."  U.S. Const. amends. VI, XIV;
Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Pointer v.
Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (applying the Sixth Amendment
to the states).  Confrontation rights are implicated where an out-of-court statement is made by an
absent witness and that statement is testimonial in nature.  Crawford, 541 U.S. at 50-52.  Once
implicated, such testimonial hearsay is admissible only if (1) the declarant is unavailable and (2) the
defendant had a prior opportunity to cross-examine the declarant.  Id. at 53-54.
Application
	Initially, we address the State's argument that Crawford does not apply in a juvenile
adjudication hearing.  For support, the State relies on In re M.P., 220 S.W.3d 99, 110 (Tex. App. -
Waco 2007, pet. denied).  However, the Waco Court of Appeals' decision in M.P. concerned the
right to confrontation at the disposition phase of the juvenile proceeding, not the adjudication phase. 
See id.  The adjudication phase is different from a disposition proceeding or a transfer hearing, as
it is the only proceeding at which the juvenile can be acquitted of any alleged wrongdoing.  At the
adjudication hearing, the juvenile is guaranteed the same constitutional rights as an adult in a
criminal proceeding.  See In re Winship, 397 U.S. 358, 359, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). 
Neither the protections afforded by the Fourteenth Amendment nor the Bill of Rights are limited to
just adults.  In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 18 L.Ed.3d 527 (1967); State v. C.J.F., 183
S.W.3d 841, 847 (Tex. App. - Houston [1st Dist.] 2005, pet. denied) (citations omitted).   Indeed,
in Gault, the United States Supreme Court determined that juveniles are entitled to notice of charges,
defense counsel, the privilege against self-incrimination, and confrontation of and cross-examination
of witnesses.  In re Gault, 387 U.S. at 49; Hidalgo v. State, 983 S.W.2d 746, 751 (Tex. Crim. App.
1999).  Thus, we conclude that M.P. is inapposite and hold that Crawford applies at the adjudication
hearing.
	We now turn to the State's second argument, that is, that the trial court did not abuse its
discretion in admitting the statement as that admission fell within a firmly rooted hearsay exception,
namely, Rule 804(a)(3).  That rule provides for the admission of certain hearsay when the declarant
testifies to a lack of memory on the subject matter of her statement.  See Tex. R. Evid. 804(a)(3). 
However, both the Supreme Court and the Court of Criminal Appeals have made clear that the
Confrontation Clause trumps any hearsay exception.  Indeed, a "statement is inadmissible absent a
showing that the declarant is presently unavailable and the defendant had a prior opportunity for
cross-examination, even if the statement 'falls under a "firmly rooted hearsay exception" or bears
"particularized guarantees of trustworthiness."'" Wall, 184 S.W.3d at 734-35 (quoting Crawford,
541 U.S. at 59-60, 68).  Thus, even if the statement was admissible under Rule 804(a)(3), an issue
we do not reach, we must still decide whether admission violated Appellant's confrontation rights.
	In a Confrontation Clause analysis, the threshold question is whether the statement at issue
is testimonial or non-testimonial in nature.  Wilson v. State, 151 S.W.3d 694, 697 (Tex. App. - Fort
Worth 2004, pet. ref'd); see also Crawford, 541 U.S. at 68-69.  A statement is "testimonial" if it is
a "solemn declaration" made for the purpose of establishing some fact.  Crawford, 541 U.S. at 51;
see also Russeau v. State, 171 S.W.3d 871, 880-81 (Tex. Crim. App. 2005).  Without a doubt,
statements derived from police interrogations are indisputably testimonial.  See Crawford, 541 U.S.
at 68.
	Here, we believe that L.C.'s statement falls into that same category.   Indeed, the statement
was made to the school security officer, written on a document titled "Student Incident Report," and
signed by L.C., acknowledging that the same "is true to the best of my knowledge."  It was made for
purposes of determining what happened, and L.C. described the incident in detail, explaining how
the fight started, what happened during the fight, and why Appellant attacked the complainant.  It
was certainly not just a simple notation that Appellant was involved in a fight.  Therefore, we
conclude that L.C.'s written statement was testimonial.  See Grant v. State, 218 S.W.3d 225, 232
(Tex. App. - Houston [14th Dist.] 2007, pet. ref'd) (finding written statements made to a school
principal for purposes of determining whether a person violated schools rules by engaging in
prohibited behavior was testimonial).
	Nevertheless, the State argues that the Confrontation Clause was not implicated because L.C.
was not absent from trial.  Although it is true that L.C. did appear in court and that she was
questioned by defense counsel, she did not remember anything that happened that day, nor could she
remember what she told the school security officer about the assault.  This Court previously found
that a witness was absent for purposes of implicating the Confrontation Clause analysis when she
testified to a complete memory loss regarding her previous statements, despite appearing at trial and
being questioned by defense counsel.  See Woodall v. State, No. 08-07-00015-CR, 2009 WL
2872837, at *5 (Tex. App. - El Paso Sept. 9, 2009, pet. granted) (op., not designated for
publication).  However, the Court of Criminal Appeals later reversed that decision, holding that
memory loss does not render a witness "absent" for Confrontation Clause purposes post-Crawford
so long as the witness was present and testifying at the time the prior statement is admitted.   See
Woodall v. State, No. PD-1379-09, -- S.W.3d --, 2011 WL 743844, at *8 (Tex. Crim. App. Mar.
2, 2011) (not yet reported).  Accordingly, although L.C. could not remember the details of her prior
written statement, because she was present and testifying at the time her statement was admitted, she
was not "absent" for Confrontation Clause purposes.  Id.  Therefore, despite the testimonial nature
of her statement, we hold that the Confrontation Clause was not implicated in this case.  See
Crawford, 514 U.S. at 50-52, 59; Woodall, 2011 WL 743844, at *6 (cases stating that to implicate
the Confrontation Clause, an out-of-court statement must meet two requirements:  (1) that it was
made by a witness absent from trial; and (2) that it was testimonial in nature).
	In short, we find that the trial court did not abuse its discretion by overruling Appellant's
Confrontation Clause objection to the admission of L.C.'s written statement.  As Appellant does not
contend that the statement was inadmissible under Rule 804(a)(3) but for his Confrontation Clause 
complaint, we will not address that issue.  Appellant's sole issue is overruled.CONCLUSION
	Having overruled Appellant's sole issue, we affirm the trial court's judgment.

						GUADALUPE RIVERA, Justice
May 4, 2011

Before Chew, C.J., McClure, and Rivera, JJ.
