                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                   NO. 2-09-172-CR

W ALLACE JUDKINS                                                           APPELLANT

                                            V.

THE STATE OF TEXAS                                                                STATE

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            FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

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                          MEMORANDUM OPINION 1

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      A jury convicted Appellant W allace Judkins of aggravated kidnapping,

enhanced by two prior felony convictions. The jury assessed his punishment at life

imprisonment. The trial court sentenced him accordingly. In four issues, Appellant

contends that the trial court erred by admitting deposition testimony at trial, that he

received ineffective assistance of counsel at trial, and that the trial court erred by not

allowing evidence regarding his claim of ineffective assistance to be presented at the

hearing on his motion for new trial. Because we hold that the trial court abused its


      1
           See Tex. R. App. P. 47.4.
discretion by admitting deposition testimony of a witness unavailable at trial when

Appellant was prevented from being present at the deposition, we reverse the trial

court’s judgment and remand this case to the trial court for a new trial.

      After allegedly burglarizing Robert Denning’s home and shooting at him, 2

Appellant began walking down the driveway. At the end of the driveway, Appellant

was passed by Deputy Billy W ilson, who was driving southbound. Appellant flagged

down a blue Volkswagen driven by Richard Pratt heading northbound. Appellant got

in the vehicle on the passenger side. Denning, who was on the phone with 911,

followed the Volkswagen in his pickup until passed by another deputy. On the 911

tape, Denning can be heard to say, “Please, don’t pull a gun on him”; “The guy’s

armed, and he just flagged down a car. Jesus, don’t pull a gun on him after you get

in there”; “Please, he’s gonna carjack ‘em”; and “I’ve gotta keep these people in sight

because somebody’s gonna get hurt.”

      Upon hearing a call about a person with a gun in the area that he had just

passed, Deputy W ilson called in a description of the vehicle that he had passed and

turned his car around to head northbound.           Deputy Tom Hutson had been

dispatched in response to Denning’s call about the burglary, and on the way to that

crime scene, Deputy Hutson heard over the radio that a blue Volkswagen was

involved. He saw the Volkswagen in front of him. Two white males were inside in

      2
       Appellant’s appeals from his convictions for attempted capital murder and
evading arrest are pending. See Judkins v. State, Nos. 02-09-00173-CR, 02-09-
00174-CR (Tex. App.—Fort W orth filed June 1, 2009).

                                          2
it. The driver looked straight ahead; the passenger looked over his shoulder and

continuously watched Deputy Hutson as he drove behind the Volkswagen.

      The jurors also heard conversations between the 911 operator and police

officers referring to Appellant’s having flagged down the Volkswagen, a possible

carjacking, and a possible hostage in the car.

      After two other officers arrived as backup, Deputy Hutson turned on his lights

to initiate a traffic stop. The Volkswagen did not stop, and a chase ensued. 3 The

chase led to a trailer park where Appellant’s mother lived. The Volkswagen drove

straight at an officer, Sergeant Paul Keith, and Keith believed that the car was going

to hit him. He dropped spikes and drew his weapon. After the Volkswagen turned

sharply and stalled out against a tree, Appellant exited the passenger’s side of the

car, fell or was pushed onto the ground, and was handcuffed by Deputy Johnny

Peters.

      Appellant told the police officers who captured him that the Volkswagen’s

driver, Pratt, had forced him to get into his car and kidnapped him and that Pratt had

a gun. The officers did indeed find a gun in the Volkswagen, and Pratt admitted that

it had been in his lap. Pratt told Deputy W ilson that he had been diagnosed with

cancer and was on his way back from treatment when Appellant flagged him down.

      Pratt did not testify at trial. Instead, the State offered his deposition testimony

over Appellant’s timely objection to the denial of the right of confrontation. The

      3
           See id.

                                           3
visiting trial judge overruled Appellant’s objection, granted his running objection, and

admitted the deposition testimony.

       The deposition had been conducted because Pratt had stage 4 cancer and

was going into hospice care. W hen the deposition was scheduled, Appellant was

in the Denton County Jail. The State fully anticipated that Appellant would be

present for the deposition. On the day before the deposition, Appellant was still

physically present in the Denton County Jail. Because federal authorities had

expressed an interest in Appellant, the prosecutor had even spoken with the federal

investigators and the federal prosecutor, who assured the state prosecutor that the

federal authorities had no intention of taking Appellant out of the Denton County Jail.

But in the middle of the night before the deposition, federal authorities took Appellant

from the jail.

       Rather than postponing the deposition until Appellant could be present, the

State asked the trial court to allow the deposition because of their concern that Pratt

might not survive until Appellant was returned to Denton County.            Appellant’s

counsel objected to Appellant’s inability to be present at the deposition and to the

constitutional denial of Appellant’s confrontation right and right to cross-examine

witnesses. Because of Pratt’s illness, the trial court overruled the objections and

allowed the deposition to go forward over Appellant’s counsel’s running objection.

The deposition was conducted in the courtroom in the presence of the trial judge

with the prosecutors and Appellant’s trial counsel present. Appellant was in federal


                                           4
custody in Oklahoma at the time of the deposition. The record reflects no attempt

to set up closed circuit television with telephone communication between Appellant

and his attorney and no effort to ensure any other means of facilitating Appellant’s

confrontation of Pratt and Appellant’s communication with defense counsel.

       Ten days before trial, the prosecutor spoke with Pratt, who was concerned

about whether he could physically come to court but nevertheless wanted to come

testify. W hen the State offered Pratt’s deposition at trial, Pratt was still alive. Pratt’s

wife had told the prosecutor, however, that Pratt was “incapacitated to the degree

where he could not get out of bed and could not talk.”

       In his second issue, Appellant contends that the trial court abused its

discretion by admitting the deposition testimony in violation of his confrontation

rights. The Supreme Court of the United States has thoroughly analyzed the history

and the purpose of an accused person’s right to confront and cross-examine his

accusers. The Court cites

       Fenwick’s Case, 13 How. St. Tr. 537, 591–592 (H.C. 1696) (Powys)
       (“[T]hat which they would offer is something that Mr. Goodman hath
       sworn when he was examined . . . ; sir J.F. not being present or privy,
       and no opportunity given to cross-examine the person; and I conceive
       that cannot be offered as evidence . . . “); id., at 592 (Shower) (“[N]o
       deposition of a person can be read, though beyond sea, unless in
       cases where the party it is to be read against was privy to the
       examination, and might have cross-examined him . . . . [O]ur
       constitution is, that the person shall see his accuser”). 4



       4
        Crawford v. Washington, 541 U.S. 36, 45–46, 124 S. Ct. 1354, 1361
(2004).

                                             5
      The right of confrontation is a personal due process right dating back to the

trial of Saint Paul the Apostle in the Roman courts. The Roman Governor Porcius

Festus, in discussing the proper treatment of St. Paul, stated, “It is not the manner

of the Romans to deliver any man to die before that he which is accused have the

accusers face to face, and have license to answer for himself concerning the crime

laid against him.”5

      The State argues that the right to confrontation is not a right personal to a

defendant but may be satisfied by the defendant’s attorney being present although

the defendant is involuntarily absent.      The State uses as an example the law

allowing a child witness to testify outside the presence of a defendant by means of

closed circuit television. 6 But that law allows the child to testify outside the presence

of the jury only when the defendant is allowed to consult with his counsel during the

questioning of the child. 7 As the Texas Court of Criminal Appeals has explained,

      W hether the reliability of the testimony is otherwise assured turns upon
      the extent to which the proceedings respect the four elements of
      confrontation:    physical presence, oath, cross-examination, and
      observation of demeanor by the trier of fact. In Maryland v. Craig, the
      Supreme Court found sufficient assurance of reliability in a procedure
      that denied one of these elements—physical presence—where the
      remaining three elements were unimpaired. In that case, a child
      witness testified in front of a one-way closed-circuit monitor that


      5
        Gray v. Moore, 520 F.3d 616, 626 n.3 (6th Cir.), cert. denied, 129 S. Ct.
216 (2008).
      6
           See Tex. Code Crim. Proc. Ann. art. 38.071 (Vernon Supp. 2009).
      7
           See id. art. 38.071, § 3(a).

                                            6
      prevented her from seeing the defendant but permitted the judge, jury,
      and defendant to see the witness. Because the witness was under
      oath, subject to contemporaneous cross-examination, and her
      demeanor was on display before the trier of fact, the Supreme Court
      found that the procedure adequately ensured that the testimony was
      “both reliable and subject to rigorous adversarial testing in a manner
      functionally equivalent to that accorded live, in person testimony.” 8

      Even if such testimony by closed-circuit television were permissible here,

Appellant was denied the protections that saved the procedure in Romero:

Appellant was not present to see the witness, and Pratt was not subject to

contemporaneous cross-examination in which Appellant could participate to aid his

counsel.

      An important aspect of the right of confrontation and cross-examination is

ensuring the integrity of the fact-finding process. 9 As the Gray court pointed out,

             By “integrity,” we do not merely mean the perception of a fair trial,
      but also the tactical assistance [the accused] could have offered his
      attorney while he questioned [the accuser] about her testimony.
      Although [the accused] had the opportunity to consult with his attorney
      after the court removed him from the courtroom and before the start of
      [the accuser’s] cross-examination, [the accused] was not present during
      the actual cross-examination and therefore could not assist his attorney
      in following-up to any answers [the accuser] provided on cross-
      examination. [Illinois v. Allen, 397 U.S. 337, 344, 90 S. Ct. 1057, 1061
      (1970)] (noting that “one of the defendant’s primary advantages to
      being present at the trial [is] his ability to communicate with his
      counsel”).10


      8
        Romero v. State, 173 S.W .3d 502, 505 (Tex. Crim. App. 2005) (footnotes
omitted).
      9
           Kentucky v. Stincer, 482 U.S. 730, 736, 107 S. Ct. 2658, 2662 (1987).
      10
            Gray, 520 F.3d at 627 (selected citation omitted).

                                           7
      Appellant suffered the same fate as Gray, who had been removed from the

courtroom. Appellant was not present to confront his accuser, and he was not able

to communicate with his lawyer during the only testimony Pratt gave.

      W hen Pratt was finally seized, he was in possession of a firearm. Only Pratt

could testify to the elements of kidnapping. Only Pratt could testify that the firearm

was not his, but, rather, had been placed under his legs by Appellant. Only Pratt

could testify that he did not voluntarily drive Appellant anywhere. Although the jury

heard Denning’s speculation on the 911 tape, it was only speculation. Only Pratt,

the complainant, could testify for the State about what actually happened between

Pratt and Appellant. Consequently, we hold that the trial court abused its discretion

in admitting Pratt’s deposition testimony over Appellant’s timely objection.

      W e also hold that the error is constitutional. In violation of the due process

guaranteed to every person charged with a criminal offense by the Sixth Amendment

requirement of confrontation and cross-examination of the accuser in a criminal

trial,11 Appellant was prevented by State action from attending Pratt’s deposition and

denied any opportunity either to confront Pratt as he testified or to provide any

assistance to defense counsel during the deposition. 12 Consequently, Appellant

could not observe Pratt’s demeanor as he testified, could not assist defense counsel

during the State’s direct examination of Pratt by pointing out any inaccuracies or


      11
            See U.S. Const. amend. VI.
      12
            See Crawford, 541 U.S. at 68, 124 S. Ct. at 1374.

                                          8
inconsistencies in his testimony, and could not participate in any way, much less any

meaningful way, in any cross-examination of Pratt, the sole complainant in the

kidnapping offense.

       Because we hold that the trial court abused its discretion by admitting the

deposition testimony at trial after allowing the deposition to go forward in Appellant’s

absence, violating his constitutional right to confront and cross-examine Pratt, we

apply rule 44.2(a) and reverse the trial court’s judgment unless we determine beyond

a reasonable doubt that the error did not contribute to Appellant’s conviction or

punishment.13

       The State argues that any error in admitting the videotaped deposition of Pratt

was harmless, relying on Heugatter, 14 because other evidence, including Denning’s

statements recorded on the 911 tape that he feared that Appellant would flag

somebody down or carjack someone and the 911 tapes of the officers’

conversations, overwhelmingly demonstrated Appellant’s guilt and because the

deposition testimony did not materially affect the jury’s deliberations.          But the

evidence excluding the deposition testimony also shows that Pratt had a firearm in

his lap when the State claimed that Appellant kidnapped Pratt, that Pratt was driving

the vehicle that later drove straight at the officer, and that the officer believed the car



       13
             See Tex. R. App. P. 44.2(a).
       14
       Heugatter v. State, No. 03-06-00127-CR, 2007 W L 2462014, at *4–5 (Tex.
App.—Austin Aug. 30, 2007, no pet.) (mem. op., not designated for publication).

                                             9
was going to hit him. W hile Denning speculated on the 911 tape that Appellant

might flag down an innocent stranger, his statements were only speculation. Only

Pratt testified to the elements of kidnapping, explaining why he stopped for

Appellant, how Appellant managed to get into the car, whether Pratt consented to

going with Appellant, whether Pratt was in fear or felt threatened, and how Pratt

ended up with a firearm in his possession.

      As the Gray court candidly explained,

      W hile we can understand that the presence of an accused may make
      a witness feel nervous or even threatened, particularly if the witness is
      a victim to the crime, the principles embodied in the Sixth Amendment
      are not meant to protect the rights of witnesses, but rather those of the
      accused, whose life and liberty lies in the hands of his peers. 15

      Because the only two witnesses to the events in the car were Appellant and

Pratt, we cannot say beyond a reasonable doubt that the admission of the deposition

of Pratt, taken at a time when Appellant had no access to his attorney, did not

contribute to Appellant’s conviction and punishment. 16       W e therefore sustain

Appellant’s second issue. Because of our disposition of this issue, we do not reach

his remaining issues. 17

      Having sustained Appellant’s second issue, which is dispositive, we reverse

the trial court’s judgment and remand this case for a new trial.


      15
            Gray, 520 F.3d at 627.
      16
            See Tex. R. App. P. 44.2(a).
      17
            See Tex. R. App. P. 47.1.

                                            10
                                           LEE ANN DAUPHINOT
                                           JUSTICE

PANEL: DAUPHINOT, W ALKER, and MEIER, JJ.

MEIER, J. dissents without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 26, 2010




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