By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Retroactive application of abolition of 5 year
limit on penalty use of adjudications valid; victim impact evidence was harmless
error (99-3-37)
On April 8, 1999, the Texarkana Court of Appeals held that retroactive
application of the statute that abolished the 5 year limitation on the use of
juvenile adjudications in adult penalty proceedings to an adjudication that
would have been barred under the law in effect at the time of the adjudication
was not prohibited by the ex post facto clause of the constitution because it is
a procedural provision. The Court of Appeals also held that admission of victim
impact testimony concerning the juvenile adjudication was error, but harmless
and not preserved for appeal.
99-3-37. Barletta v. State, 994 S.W.2d 708 (Tex.App.—Texarkana 4/8/99)[Texas
Juvenile Law (4th Edition 1996)].
Facts: Samuel Barletta appeals from his conviction for intoxication
manslaughter. He contends, based upon statutory and constitutional grounds, that
the trial court erred at the punishment phase of his trial by allowing the State
to introduce evidence showing the fact of his prior adjudication as a juvenile
for the offense of manslaughter by use of an automobile. He also contends that
the court erred in admitting the details of that prior offense and by admitting
victim impact testimony related to it.
The evidence shows that, after working a late-night shift at his job, and after
spending some time in a local bar, in the pre-dawn hours of June 18, 1997,
Barletta drove his pickup truck into a lane of oncoming traffic and hit a car
occupied by two adults and two children. The driver of the other vehicle and her
four-year-old son were killed on impact, and the other adult was severely
injured. The other child was also injured. The State proved that Barletta's
blood alcohol content was 0.11 percent. A jury found Barletta guilty and
assessed his punishment at imprisonment for seventeen years.
Barletta has not challenged the conviction. He contends that two types of errors
occurred during the punishment phase of his trial, either of which justifies
returning the case for a new punishment hearing. He first contends that evidence
about a prior vehicular homicide in which he was the driver, that occurred while
he was a juvenile, should not have been presented to the jury.
Held: Affirmed.
Opinion Text: This type of evidence is explicitly permitted under Tex.Code Crim.
Proc. Ann. art. 37.07, § 3(a) (Vernon Supp.1999), which provides that at
punishment:
evidence may be offered by the state and the defendant of an adjudication of
delinquency based on a violation by the defendant of a penal law of the grade
of:
(1) a felony; or
(2) a misdemeanor punishable by confinement in jail.
Barletta acknowledges that the statute now provides for the admission of the
evidence, but argues that the introduction of any such evidence in his case
should have been allowed only if it were permissible under the statute as it
existed at the time of the adjudication of delinquency. At the time he was
adjudicated delinquent, the statute provided that such evidence was admissible
only if the adjudication occurred less than five years before the commission of
the offense for which the defendant was being tried and the defendant had during
that five-year period not otherwise engaged in conduct for which he had been
adjudicated as a delinquent. The present prosecution is for an offense committed
over five years after the date of the juvenile adjudication. [FN1]
FN1. The five-year limitation does not exist in the present version of the
statute.
Barletta contends that the prior version of the Code should apply because
application of the current statute violates the ex post facto and due process
provisions of the law and because he had been warned, as required by statute, of
the consequences of his plea--one of which was the potential use of the
delinquency adjudication. He contends that to apply the changed statute to his
case would result in the application of an ex post facto law and would therefore
be improper.
The ex post facto clause condemns the imposition of punishment retroactively. An
ex post facto law (1) punishes as a crime an act previously committed which was
innocent when done, (2) changes the punishment and inflicts a greater punishment
than the law attached to a criminal offense when committed, or (3) deprives a
person charged with a crime of any defense available at the time the act was
committed. Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30
(1990); Ex parte Hallmark, 883 S.W.2d 672, 674 (Tex.Crim.App.1994). Both the
United States and the Texas Constitutions contain an absolute prohibition
against ex post facto laws. U.S. CONST. art. I, § 10; TEX. CONST. art. I, §
16. It is not an individual right--rather, it is a "categorical prohibition
directed by the people to their government." It cannot be waived. Ieppert
v. State, 908 S.W.2d 217, 220 (Tex.Crim.App.1995).
Laws which do not amend substantive law by defining criminal acts or providing
for penalties are procedural in nature. Ex parte Johnson, 697 S.W.2d 605, 607
(Tex.Crim.App.1985); Ex parte Allen, 699 S.W.2d 886, 895 (Tex.App.Dallas 1985,
pet. ref'd) (opinion on reh'g). Remedial or procedural laws are not usually
within the ex post facto prohibition. Ex parte Allen, 699 S.W.2d at 895. A
procedural statute is not ex post facto merely because it works to a defendant's
disadvantage. Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 53 L.Ed.2d
344, 356 (1977). However, if a procedural change is retroactive and results in a
deprivation of a substantive protection, it is unconstitutional. Ex parte
Abahosh, 561 S.W.2d 202, 203 (Tex.Crim.App. [Panel Op.] 1978); Goodlow v. State,
766 S.W.2d 352, 354 (Tex.App.Texarkana 1989, pet. ref'd); Ex parte Allen, 699
S.W.2d at 895.
In the present case, the changed statute does not directly affect the punishment
assessed against the defendant. Counsel contends that because the Family Code
requires the defendant to be admonished about the fact that a juvenile
conviction may be used in a subsequent prosecution, [FN2] then Barletta's plea
in the juvenile proceeding was based in part upon the information that the
juvenile proceeding could not be used in a later proceeding. Therefore, he
argues, the later use of the adjudication constitutes punishment and is
constitutionally improper.
FN2. Tex. Fam.Code Ann. § 54.03 (Vernon 1996 & Supp.1999).
We reject this argument for several reasons. At any juvenile adjudication
hearing, the Family Code requires the court, at the beginning of such hearing,
to "explain" to the child and his parent, among other things, the
nature and possible consequences of the proceedings, including the law relating
to the admissibility of the record of a juvenile court adjudication in a later
criminal proceeding. Tex. Fam.Code Ann. § 54.03 (Vernon 1996 & Supp.1999).
It is apparent this provision merely requires an explanation by the juvenile
court judge of "the proceedings" being conducted and their
consequences. It is not primarily concerned with punishment. As a part of this
explanation, the provision requires the juvenile court judge to refer to yet
another procedural statute and "explain" to the juvenile "the law
relating to the admissibility of the record of a juvenile court adjudication in
a [later] criminal proceeding." This "law" is found in Article
37.07, § 3(a) of the Code of Criminal Procedure, which concerns the procedure
to be used during the punishment phase of a trial. It does not set punishment
but provides the procedure by which a trial judge can decide what information
may be properly considered in deciding an appropriate punishment. We hold that
these provisions are procedural in nature and that the trial court's application
of Article 37.07, § 3(a) as it existed at the time of Barletta's trial, did not
deprive him of a substantive protection.
Further, counsel has directed us to no authority to support his position that
the admissibility of the juvenile adjudication in a later criminal proceeding
constitutes punishment for the initial offense, and we are aware of none.
Barletta next contends that the trial court erred at punishment by permitting
the State to elicit details about the incident that resulted in his juvenile
adjudication, rather than limiting the information to the fact that he was
adjudicated guilty of the particular crime. In a connected argument, he also
contends that the court erred by admitting testimony in the form of victim
impact evidence related to the prior offense.
The first aspect of this argument was addressed recently by the Waco Court of
Appeals in Haney v. State, 951 S.W.2d 551, 554-55 (Tex.App.Waco 1997, no pet.).
In its discussion of the issue as controlled by Tex.Code Crim. Proc. Ann. art.
37.07, § 3(a), the Waco court recognized that the legislature had provided that
either the state or defendant could offer evidence of any matter the court deems
relevant to sentencing, and that the statute goes on to specify that relevant
evidence includes the defendant's prior criminal record and evidence of an
extraneous crime or bad act proven beyond a reasonable doubt. The statute also
provides specifically that evidence about the "bad acts" is admissible
regardless of whether he has previously been charged with or finally convicted
of the crime or bad act. The reasoning of the Waco court is accurately based
upon the statute and its discussion of the history of its application. This
contention is overruled.
A more troublesome question involves the admissibility of the testimony about
the impact of the death of the victim upon his family in the juvenile
adjudication. The State presented evidence that Barletta was driving a car at
over eighty-five miles per hour, with several teenage passengers in his car, ran
a stop sign, and lost control. A passenger in his car died in the ensuing wreck.
His juvenile adjudication resulted from the death. We have concluded that the
evidence about the facts of the accident was admissible. In this instance,
however, the complained-of testimony is that of the mother of the teenage victim
who died in that accident.
Barletta's counsel sought and was granted a running objection to all of the
testimony of all of the State's witnesses at punishment on multiple grounds,
including his position that the testimony was not admissible under Rule of
Evidence 403, his ex post facto statutory claim, and his contention that
admitting the testimony constituted a denial of due process. The Texas Court of
Criminal Appeals has held that a relevancy objection based upon Rule of Evidence
401 to extraneous offense evidence in this context is sufficient to support a
later specific claim that victim impact testimony was improperly admitted. Cantu
v. State, 939 S.W.2d 627, 637 (Tex.Crim.App.1997).
Evidence may be offered by the state and the defendant as to any matter the
court deems relevant to sentencing. Tex.Code Crim. Proc. Ann. art. 37.07, §
3(a). Questions of relevance are left largely to the trial court, and we will
not reverse on that basis absent an abuse of discretion. Moreno v. State, 858
S.W.2d 453, 463 (Tex.Crim.App.1993). In reviewing a trial court's relevancy
decision under this standard, we look to see if the trial court's ruling was
within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372,
391 (Tex.Crim.App.1990) (opinion on reh'g).
Our review in this situation is controlled by Cantu, 939 S.W.2d at 636-37. In
that case, Cantu was tried for the murder of Jennifer Ertman. At punishment,
testimony by the mother of another victim, Elizabeth Pena, who died during the
same criminal episode, was admitted. She testified, similarly to the mother in
this case, about her relationship with her daughter, the events surrounding the
disappearance of her daughter, and the effect that her daughter's death was
having on her and the rest of the family. The court noted that Cantu was not on
trial for the murder of Pena. It further stated categorically that the case law
did not support the admission of such evidence and the cases that validate
victim impact testimony are limited to testimony about the victim named in the
indictment upon which the defendant is being tried. The court stated that:
The admission of such evidence would open the door to admission of victim impact
evidence arising from any extraneous offense committed by a defendant.
Extraneous victim impact evidence, if anything, is more prejudicial than the
non-extraneous victim impact evidence found by this Court to be inadmissible in
Smith, supra. We hold that such evidence is irrelevant under Tex.R.Crim. Evid.
401 and therefore irrelevant in the context of the special issues under Art.
37.071 [the capital murder statute].
Cantu, 939 S.W.2d at 637.
Despite this analysis, the court then concluded that the erroneous admission of
the testimony was harmless beyond a reasonable doubt, because the witness was
one of over thirty witnesses who testified at punishment, because her testimony
was only twenty pages of a 700-page punishment record, because the state did not
mention her testimony during jury argument and because the overwhelming focus
during the punishment phase was on Cantu's behavior and the circumstances of the
offense at bar.
In applying this analysis, we must first look to see whether the claim of error
was preserved for review. Our analysis is complicated by the way in which this
testimony was presented to the jury. It is clear that the trial court granted
counsel a running objection to testimony by multiple witnesses based upon
relevance. Counsel can preserve error by obtaining a specific running objection
as to a specific line of questioning by obtaining a contrary ruling by the trial
judge outside the presence of the jury. Tex.R.App. P. 33.1; Ethington v. State,
819 S.W.2d 854, 858 (Tex.Crim.App.1991).
It is not clear, however, that the relevance objection made by counsel in his
running objection applies to the complained-of testimony. The running objection
as to relevancy/unfair prejudice was to the underlying facts of the prior
offense. At that point, impact testimony by the mother of the victim in the
prior accident was not discussed. We conclude that this claim of error was not
preserved for review by the running objections made before testimony commenced.
The further question is whether specific and timely objections were made during
the witness' testimony. At certain points during the mother's testimony, counsel
made several specific objections to her testimony on the basis of relevance
which were sustained by the court, and one which was overruled.
The general rule is that a complaining party must first object, and if the
objection is sustained, must then ask for an instruction to disregard. If the
instruction is given, counsel must then move for a mistrial. Nethery v. State,
692 S.W.2d 686, 701 (Tex.Crim.App.1985); Coe v. State, 683 S.W.2d 431, 436
(Tex.Crim.App.1984). If counsel does not pursue the objection to an adverse
ruling, error is not preserved for appellate review. Tex.R.App. P. 33.1; Ramirez
v. State, 815 S.W.2d 636, 643 (Tex.Crim.App.1991).
The testimony was offered in the following sequence. The witness first
identified herself, her husband, and her surviving daughter. She then identified
her son as the individual killed in the earlier accident. She testified about
her inability to have any more children and the impact of the loss of her only
son, and about the telephone call that she received from her son shortly before
he got into the car in which he died. She testified about the way that she was
informed of his death, and about his personal characteristics and interests--his
interest in football, his upcoming first date, his loving nature, his interest
in religion, and his helpful nature.
At that point, counsel objected to her testimony based upon relevancy. The court
sustained the objection "to the answers going on. I trust that we're--
you're about to--[finish]." The State went on to ask her what kind of
grades her son made. Counsel again objected, and the court sustained the
objection.
The State then asked the witness if the impact of the loss of her son was
substantial. Counsel again objected, and the court overruled the objection.
However, after the witness answered that question, she then continued,
testifying at some length without further objection about the pain and despair
that both she and her husband felt because of the loss of their child. As she
finished, counsel again objected, and the trial court sustained the objection
and directed the State to move along. At that point, the State ended its
questioning.
Under the holding of Cantu, the victim impact testimony should not have been
presented to the jury. However, after the State's questioning veered into areas
that involved victim impact rather than the facts of the previous offense, the
relevancy objections made to the testimony were sustained, and no further relief
was sought. The sole objection in this sequence that was overruled by the trial
court was to a question that did not ask the witness to expound upon the impact
of the previous crime, but merely asked if there had been an impact. It is
arguable that even that question was improper. We nevertheless conclude that her
answer to that question: that there was a substantial impact upon her family
because of the loss of her son, was not so inflammatory as to affect a
substantial right of the accused in this case.
Based upon this state of the record, we conclude that the claim of erroneous
admission of the victim impact testimony was not preserved for appellate review.
The bare question of whether the death caused a substantial impact upon the
witness' family, standing alone, is not so inflammatory or unfairly prejudicial
as to affect a substantial right of the accused in this case. Tex.R.App. P.
44.2.