John Alberto Roman v. the State of Texas
Date Filed2023-12-28
Docket01-22-00748-CR
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
Opinion issued December 28, 2023
In The
Court of Appeals
For The
First District of Texas
ââââââââââââ
NO. 01-22-00748-CR
âââââââââââ
JOHN ALBERTO ROMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 25th District Court
Colorado County, Texas
Trial Court Case No. 20-153
MEMORANDUM OPINION
A jury convicted Appellant John Alberto Roman of aggravated robbery and
unlawful possession of firearm by a felon. After finding an enhancement allegation
true, the jury assessed Appellantâs punishment at 99 yearsâ confinement for the
aggravated robbery offense and 10 yearsâ confinement for the offense of unlawful
possession of firearm by a felon, both to be served in the Texas Department of
Criminal JusticeâInstitutional Division.
On appeal, Appellant argues (1) the trial court barred him from asserting his
rights under the Confrontation Clause of the Sixth Amendment by admitting out-of-
court statements from a witness who was not available to be cross-examined under
the doctrine of forfeiture by wrongdoing, and (2) the trial court erred by failing to
include a verdict sheet for the lesser included offense of aggravated assault.
We affirm.
Background
On October 16, 2020, 58-year-old Craig Anthony Wilson was shot in the
shoulder. A grand jury indicted Appellant John Alberto Roman for three offenses
stemming from Wilsonâs shooting: (1) aggravated assault, (2) aggravated robbery,
and (3) felon in possession of a firearm. Romanâs case proceeded to a jury trial.
A. Craig Anthony Wilson
Wilson, the complainant, testified that he texted 17-year-old BreâAndrea
Wiley when he got off of work on October 16, 2020, and he asked Wiley if he could
come visit her. Wiley told Wilson he could stop by her apartment building in
Columbus, Texas. Wilson acknowledged the purpose of his visit was to pay Wiley
to have sex with him in his SUV. According to Wilson, Wiley had texted him the
2
night before and told him she needed money to get her hair done and she wanted to
have sex with him.
When Wilson arrived at Wileyâs apartment building, he parked his SUV in
the parking lot, and he waited for Wiley. Wilson had already put the SUVs backseats
down in anticipation of his meeting with Wiley. According to Wilson, Wiley came
out of her apartment almost immediately and she was carrying something he
believed to be a towel in her hand. Wiley kept looking behind her as she approached
Wilsonâs SUV. Wiley first attempted to open the rear passenger-side door of the
SUV, but it was locked. She then got into the front passenger seat, and she reached
back and unlocked the rear passenger-seat door. According to Wilson, Wiley did
not close her door or answer when he asked her why she unlocked the back door.
Appellant John Alberto Roman, who had a taser in his hand, jumped in the
SUV through the unlocked rear passenger-side door, tased Wilsonâs shoulder and
asked Wilson, âWhereâs the money at?â Wilson, who thought the taser1 was a gun,
jumped into the backseat with Roman to try to get the taser from him. Roman
dropped the taser during his struggle with Wilson. Roman then reached behind him
and pulled out a pistol. Roman and Wilson began struggling over the pistol.
According to Wilson, Roman intentionally shot at him twice while they were
struggling, and one bullet struck Wilson in the shoulder. After shooting Wilson,
1
The taser was located on the end of a long baton, referred to as a stun baton.
3
Roman climbed out of the SUV through the rear passenger-side door and ran away.
Wiley was no longer in the SUV and Wilson did not know when she left.
Wilson testified he knew the man who shot him was Roman because he had
known Roman for several years, and he saw Romanâs face and recognized his voice.
According to Wilson, Roman was wearing a cap and some silver-looking, square
glasses when he climbed in the SUV. Wilson testified he never asked Roman to get
into his SUV.
After Roman ran away, Wilson climbed back into the driverâs seat and drove
to his home. When he arrived at home, Wilson inspected his SUV for damage and
he collected the stun baton Roman had used, Romanâs cap and eyeglasses, and a
fired gun shell from off the floorboard. Wilson put the taser, cap, and glasses in the
SUVâs cargo area and he threw the shell in the trash inside his home. Wilson told
his wife, Vernita, that someone had just shot him in the shoulder when he got out of
his SUV. Wilson testified he lied to Vernita because he did not want her to know he
had been paying Wiley to have sex with him. Neither Wilson nor Vernita called the
police to report the shooting.
Vernita took Wilson to the Columbus Community Hospital emergency room
and someone at the hospital notified the Colorado County Sheriffâs Office that
Wilson had been shot. When the responding officers questioned Wilson about his
gunshot wound, Wilson told them he had been shot while standing in his yard after
4
he got home from work. He did so because he did not want Vernita to know about
his sexual relationship with Wiley. After inspecting Wilsonâs SUV and the outside
of his home where he allegedly had been shot, the officers told Wilson, who was still
in the hospital, that his story was not âadding up.â At that point, Wilson admitted
lying to the officers and Vernita about the shooting. He identified Roman as the
shooter. Wilson also identified Roman in court as the person who demanded money
from him and then shot him in the shoulder.
On cross-examination, Wilson admitted he had paid Wiley for sex on four or
five prior occasions after her seventeenth birthday. Wilson denied ever going inside
Wileyâs apartment and insisted that he and Wiley only had sex in his SUV.
B. Deputy Andrew Lopez and Deputy Ryan Ohl
On October 16, 2020, Deputy Andrew Lopez, Deputy Josh Solis, and Deputy
Ryan Ohl with the Colorado County Sheriffâs Office responded to a call at the
Columbus Community Hospital regarding a gunshot victim. Deputy Lopez, who
met with Wilson and Vernita at the hospital, testified that Wilson had a gunshot
wound on the top left of his shoulder that was bleeding and appeared âfresh.â Wilson
told Deputy Lopez that someone had shot him while he was standing outside his
home, but he did not know the shooterâs identity.
Deputy Solis and Deputy Ohl went to Wilsonâs home to inspect the alleged
crime scene while Deputy Lopez talked to Wilson and Vernita at the hospital. Other
5
than a small amount of blood on a rock in the driveway, Deputy Solis and Deputy
Ohl did not find any shell casings or other evidence indicating that the shooting had
occurred at that location, as Wilson claimed. After they reported their findings to
Deputy Lopez, Deputy Lopez briefly inspected Wilsonâs SUV, which was parked at
the hospital. Deputy Lopez testified there were three bullet indentations in the rear
driverâs side door, and a âprofuseâ amount of blood on the SUVâs driverâs seat,
dashboard, front passenger seat, back seat, and in the cargo area. Based on his
observations, Deputy Lopez concluded the shooting had occurred inside Wilsonâs
SUV, not outside Wilsonâs home as Wilson claimed.
Deputy Ohl corroborated Deputy Lopezâs testimony regarding their
investigation of Wilsonâs home and SUV. Deputy Ohl testified that he and Deputy
Solis did not find any evidence that a shooting had occurred outside Wilsonâs home.
After inspecting the outside of Wilsonâs vehicle, Deputy Ohl concluded the shooting
had occurred inside the SUV.
C. Detective William Moulder
The Columbus Police Department took the investigation over from the
Sheriffâs Office after Wilson admitted that the shooting had occurred inside
Wilsonâs SUV, while parked outside Wileyâs apartment building in Columbus,
Texas. Detective William Moulder with the Columbus Police Department began his
investigation by going to the Colorado County Sheriffâs Office to gather information
6
and inspect Wilsonâs SUV. According to Detective Moulder, 17-year-old Wiley
was inside Wilsonâs SUV when Roman shot Wilson. Detective Moulder knew
Roman and identified Roman in the courtroom. Detective Moulder testified that he
saw blood in the SUVâs interior and an indentation in the rear driverâs side door
panel indicating that a bullet had struck the inside of the door. Detective Moulder
also inspected the parking lot of Wileyâs apartment building, but he did not find any
evidence of a crime occurring at the scene.
Detective Moulder then spoke to Wilson and Vernita at the hospital and
photographed Wilsonâs injuries. Wilson told Moulder that Roman had never been
inside the SUV before the shooting, and he gave Detective Moulder consent to
search his SUV and cell phone.2 Detective Moulder found evidence that three bullets
had been fired inside Wilsonâs SUV, and he collected several items from the SUVâs
cargo area including eyeglasses, a stun baton, and a black baseball hat.
The stun baton, eyeglasses, and black baseball cap were sent to the Texas
Department of Public Safety Crime Lab for processing, along with blood samples
Moulder had collected from the SUVâs interior, DNA samples from Wilson and
Vernita, and buccal swabs taken from Roman. Detective Moulder also dusted the
2
Wilson had deleted his text messages with Wiley, and Moulder was not able to
retrieve the information from Wilsonâs cell phone. Although Vernita gave
Detective Moulder the shell casing Wilson had thrown away, Detective Moulder did
not submit the shell casing for forensic analysis because no firearm was recovered
during the investigation and the shell casing itself had been tainted.
7
rear passenger side door for fingerprints, but no fingerprints were recovered from
Wilsonâs SUV or any of the evidence Moulder collected from the vehicle.
D. Investigator Keith Webb
Keith Webb, an investigator with the Colorado County Attorneyâs Office,
prepared a search warrant for Romanâs DNA. The search warrant and Webbâs
probable cause affidavit were admitted into evidence without objection as State
Exhibit 63. In his affidavit, Webb stated:
Columbus Police Detective [William] Moulder took a statement from
Craig Wilson who told him that a 17-year-old female named
BreâAndrea Wiley contacted him asking him for some money so she
could get her hair fixed. She told Wilson to meet her at the Preston
Apartments. When Wilson arrived Wiley got into the front passenger
seat and then she reached into the back seat and unlocked the rear
passenger door. Then 35-year-old John Alberto Roman opened the rear
passenger door and got inside.
Wilson said that he recognized Roman and has known him for several
years. Roman immediately yelled at Wilson, âWhere is the money?â
Roman was holding a long black flashlight taser, which he used to
shock Wilson with. Wilson began fighting with Roman and ended up
in the backseat where he was able to take the taser device away from
him. Then Roman pulled out a semi-auto pistol.
Wilson dropped the taser then he began trying to take the pistol away
from Roman. During the struggle Roman discharged the pistol three (3)
times with one of the bullets hitting him in the shoulder. After the
shooting Roman exited the vehicle and ran away.
...
A search of the interior of the vehicle located several fired bullet
fragments, a black baseball cap and prescription eyeglasses believed to
belong to Roman. Detective Moulder also located and recovered a
8
âStreetwise Police Forceâ brand taser that is marketed as being a
flashlight, a baton striking weapon and a high voltage stun weapon.
In his probable cause affidavit, Webb also stated that Wiley had given a sworn
statement. Webb stated:
Columbus Police Captain Wendy Alley took a sworn statement from
BreâAndrea Wiley. Wiley told Alley that she has been dating Roman
for a while and he had become angry when he learned that Wilson had
been communicating with her. Roman had Wiley contact Wilson to
arrange a meeting because he was going to make Wilson âcome to an
understanding about stopping him from calling herâ. Wiley told Alley
that she knew he had a pistol but didnât know anything about him
having a taser. Roman had told Wiley to bring a towel when she went
to Wilsonâs vehicle so he could wrap up his pistol with it when he was
through. Roman later told Wiley that he would break her jaw and leave
her paralyzed if she told the police what he had done.
E. Julia Yip
Julia Yip, a forensic scientist with the DPS Crime Lab, compared known DNA
samples from Roman, Wilson, and Vernita with the two samples of DNA located on
the black baseball cap found in Wilsonâs SUV. Yip testified the hat contained a
mixture of DNA from at least three different individuals, at least one of whom
was male. According to Yip, the probability that the DNA profile on the hat:
came from Craig Wilson, John Roman, and one unrelated individual, is
66.9 quattuordecillion times greater than the probability of this profile,
if the DNA came from three unrelated, unknown individuals. This
likelihood ratio indicates support for the proposition that Craig Wilson
and John Roman are possible contributors to the profile.
Yip further testified:
9
the probability of the profile if the DNA came from John Roman and
two unknown individuals is 698 septillion times greater than the
probability of this profile if the DNA came from three unrelated,
unknown individuals; and for Craig Wilson, the probability of this
profile, if the DNA came from Craig Wilson and two unknown
individuals is 343 quadrillion times greater than the probability of this
profile if the DNA came from three unrelated, unknown individuals.
So 698 septillion is a bigger number than 343 quadrillion.
She further testified:
So the probability of this profile from the portion of the swabbings from
the black hat, if the DNA came from John Roman and two unknown
individuals, is 698 septillion times greater than the probability of this
profile, if the DNA came from three unrelated, unknown individuals;
and for the comparisons to Craig Wilson, the probability of the profile,
if the DNA came from Craig Wilson and two unknown individuals, is
343 quadrillion times greater than the probability of this profile if the
DNA came from three unrelated, unknown individuals. And 698
septillion is a larger number than 343 quadrillion.
In other words, Roman and Wilson were possible contributors to the DNA on the
black hat found in Wilsonâs SUV and the probability that the DNA came from
Roman and two unknown individuals was greater than the probability that it came
from Wilson and two unknown persons.
F. Captain Wendy Alley
Captain Wendy Alley with the Columbus Police Department showed a photo
array to Wilson, and Wilson identified Roman as the person who shot him in the
shoulder. Wilson told Captain Alley that he was â100 percent sure.â
At that point in Captain Alleyâs testimony, the State requested a hearing to
determine whether the doctrine of forfeiture by wrongdoing barred Roman from
10
objecting to the admission of Wileyâs out-of-court statements based on the Sixth
Amendmentâs Confrontation Clause. During the hearing, the State presented
testimony from Captain Alley and Wileyâs mother Laquida Sewell.3 After hearing
the testimony and arguments from Roman and the State, the trial court found by a
preponderance of the evidence that the forfeiture by wrongdoing doctrine, codified
in Article 38.49 of the Texas Code of Criminal Procedure, applied and Roman was
thus prohibited from asserting his constitutional right to confront Wiley.
Wileyâs written statement, given to Captain Alley on October 19, 2020, was
redacted. The redacted statement was admitted as State Exhibit 66 and submitted to
the jury. When the State offered the redacted version of Wileyâs written statement
into evidence, Roman objected to the admission of the statement on the grounds that
â[i]t is hearsay,â its admission âviolates the Sixth Amendment confrontation clause,â
and it âunfairly prejudiced [Roman] by the surprise of the statement coming in with
the witness not being available.â The trial court admitted the redacted statement
over Romanâs objection.
When Captain Alleyâs testimony resumed, she read Wileyâs redacted written
statement to the jury.
I know Craig Wilson through mutual friends for around three years. I
know John Roman by babysitting his kids. [Roman] had a Halloween
party in 2018, and Craig started flirting with me and asked me to meet
3
We discuss Captain Alleyâs and Sewellâs hearing testimony below in the âTexas
Code of Criminal Procedure Article 38.49 Hearingâ section of this opinion.
11
up with him. We met at my apartment at my parking lot, and he drove
a red Mustang. We had sex in the back seat. He gave me $30 and told
me not to tell anybody because I was too young. Craig and I had met
up around five to six times a week. I would either perform oral sex or
sex, and he would give me money. He would always wear a condom if
we had sex, and we would always have sex in my apartment parking
lot. Craig would sit in the driverâs seat to put on the condom, then get
into the back seat.
Around a year ago, when I was still 16 years old, I started having sexual
relationship with [Roman]. I call him Rico. [Roman] knew I was 16,
but he didnât care. [Roman] and I would have sex at his house by the
junior high. When [Roman] and I had sex, he would never wear a
condom.
In April of this year, Craig picked me up from work at Burger King. It
was around 11:00 p.m. Craig took me to my apartment. Usually when
Craig gives me a ride home from work I give him a blow job. On this
night I wasnât feeling it, so I just got out and walked into my apartment.
I did not lock the door behind me. My mom and sister were not home.
I walked into my momâs bedroom. I was sitting in my momâs bed, and
I still had on my work clothes. Craig came inside without permission. I
asked him what he was doing, and I smelled the beer on his breath.
Craig started unbuttoning my high-waisted jeans. Craig told me âCome
on, baby.â Craig got my pants and panties off and forced his penis into
my vagina. Craig went like four strokes. I told him to stop. He did.
Craig put his shorts back on. I stayed on the bed. Craig walked outside,
and I hurried up and locked it behind him. Craig raped me.
I didnât tell anyone, but a week later I told [Roman]. [Roman] seemed
surprised and didnât really say anything. He took me home. [Roman]
and I had not talked about the rape since then except for the night he
shot Craig. On that day [Roman] told me to text Craig. He told me to
text him that I would have sex with him, but because I was on my
period, I would give him head, then have sex with him when I was off
my period for $140, so that I could get my hair done. [Roman] told me
he was going to bust Craig in the ass. I knew [Roman] had the gun, but
not the taser. I never thought [Roman] would shoot Craig. [Roman] said
he was going to make Craig come to an understanding about stopping
him from reaching out to me or calling me.
12
The plan was that I would get in the front passenger seat and Craig
would be in the driverâs seat like he usually is to put a condom on, but
Craig was already in the back seat when I sat down in the front
passenger seat. When I walked out, I had a blue towel with me in my
hands. [Roman] had told me to take it with me so he could wrap the gun
with it. So when [Roman] got in the back passenger seat Craig was in
the back seat with him. They started wrestling in the back seat, but it
was dark so I could not see. I heard like three gunshots. [Roman] yelled
at me to open his door. He was locked inside, so I did. Then I ran by a
little red car in the parking lot. [Roman] got out, and I saw the gun in
his hands. Craig drove off.
[Roman] told me that if the cops come, to tell them that Craig had raped
me. [Roman] left. He later picked me up around 2:00 a.m. We went to
his house, and he dropped me back off around 5:00 a.m. After that I
was trying to avoid [Roman], but on Sunday, the 25th, [Roman] picked
me up from my apartment and took me to one of his houses right by the
junior high and was telling me that he was going to move me in with
him. Then he started in asking me about all of these dudes I was with,
but I wasnât.
[Roman] slapped me twice in my face, and it hurt me. I was shaking. I
was so scared. This wasnât the first time [Roman] has hit me. [Roman]
was telling me that he was going to break my jaw and paralyze me if I
told anybody about what we were talking about. He kept asking me to
name all of the guys Iâve slept with. I kicked off my shoes and ran to
my friend Shatyra Scottâs house to get away from him. I told Shatyra
that I was running from [Roman]. [Roman] had my cell phone in his
pocket, so now he has it. [Roman] calls my sisterâs phone and says I
need to get myself together and says heâs been watching me. Now Iâm
scared to even go outside, and I quit my job, too. [Roman] said if I tell
the police about the shooting, that he has bail money. I donât know
where the gun is.
G. Closing Arguments
In its closing argument, the State argued that Wilsonâs testimony provided
direct evidence that Roman had committed aggravated robbery when he demanded
13
money from Wilson and shot him in the shoulder. The State argued that Wilsonâs
testimony was corroborated by Wileyâs out-of-court statement, Wilsonâs gunshot
wound, and the physical evidence collected from inside the SUV, including the DNA
found on the black baseball cap. According to the State:
Three bullet holes corroborate[] what Craig Wilson testified, and it
corroborates what [Wiley] said in her statement. There is a taser in the
vehicle. That corroborates, and there was a bullet casing found in the
vehicle. It corroborates Craig Wilsonâs testimony.
The State argued there was also circumstantial evidence of Romanâs guilt, stating:
Detective Moulderâs testimony about what the physical evidence
showed. He processed it, and then based on what he saw, he came to a
conclusion based on his training and his experience that there was a
struggle that occurred in that vehicle, exactly like Craig Wilson said.
Someone was shot. There was no evidence outside the vehicle or in the
parking lot. Thatâs because everything happened inside the car. And
there is evidence from the witness stand that there were shots heard
being fired a little after midnight, if yâall will remember that, near the
Preston Street Apartments. The probabilities that that DNA off of that
cap from John Roman and two unknown individuals is that much
greater than that it came from Craig Wilson and two unknown
individuals. . . And itâs a reasonable conclusion or a reasonable
deduction from that evidence that the cap was worn by John Roman. It
corroborates what Craig Wilson testified to, that John Roman left that
hat in his vehicle on October the 16th, 2020.
The State, who acknowledged Wilson had lied to the police and his wife about the
shooting and his sexual relationship with Wiley, argued:
Weâre not saying that Craig Wilson is a good person. This case is the
State versus John Roman. It is not about Craig Wilson versus John
Roman. We donât pick our victims or the crimes that are committed in
Colorado County. Justice is blind.
14
As the State had anticipated, Romanâs closing argument focused extensively
on Wilsonâs character flaws, criminal conduct, and the credibility of his testimony.
Notably, one piece of evidence Roman relied on to make his case to the jury was
Wileyâs out-of-court statement, which provided the only evidence that Wilson had
sexually assaulted Wiley and paid her for sex when she was sixteen years old.
Relying on Wileyâs out-of-court statement, Roman argued that Wilson had not only
lied to the police and his wife, he also lied to the jury about his relationship with
Wiley:
Hereâs a man who came into court, who lied under oath to your faces.
He said âI did not begin to sleep with this girl when she was 16. I had
never been to her home, and I did not rape her.â We now know he did.
And in a remarkable question mark we have a man who is engaging in
prostitution or sex trafficking, a man who lied to the police under oath,
a man who raped a young girl, and also engaged in sex with a minor.
All crimes. And for some strange reason, this man has not been
criminally charged. This man is still in the community, doing whatever
he does to whomever apparently he wants, that he can find. He wasnât
charged with prostitution. He wasnât charged with lying under oath to
the police. Itâs amazing.
Roman also argued that the only evidence a robbery had occurred was Wilsonâs
testimony that Roman had tased him and demanded money. According to Roman,
Wilsonâs robbery claim was part of the âbarrage of liesâ he had concocted in a
desperate attempt to cover up his own wrongdoing, as demonstrated by the fact
Wiley never mentioned a robbery in her statement. Roman argued:
The person who has absolutely no credibility at all is Craig White --
Wilson. Do you realize that the only person, the only person, who said
15
that this was about a robbery, that this was someone demanding money,
the only person who said that is Craig Wilson. When you look at
[Wileyâs] statement in its entirety, there is not one mention of a robbery
or a demand for money or property, so why did that story come up about
a robbery?
Romanâs counsel then asked the jury to return a verdict of not guilty on all counts
because:
Itâs the right thing to do. As the conscience of the community, if you do
anything else other than that, you have endorsed, encouraged,
supported Craig Wilson, the rapist, the liar, the person who engages in
prostitution.
Romanâs counsel further argued, âThe greatest miscarriage of justice in this case
would be to lend by a verdict your encouragement or support, your applause, your
consent, to a person like Craig Wilson. Letâs not do that. We canât do that.â
In its rebuttal, the State argued that neither Roman nor Wilson were innocent
parties and although Wilson had not been prosecuted for his alleged crimes, it was
possible he would be charged in the future. The State argued that the only issue
before the jury was âwhether or not John Roman shot [Wilson] during the course of
a robbery.â The State also argued that Wileyâs out-of-court statement corroborated
Wilsonâs testimony that Roman had attempted to rob him because her claim that
Roman instructed her to tell Wilson to bring money with him supported an inference
that a robbery had occurred.
The jury found Roman guilty of aggravated robbery and unlawful possession
of firearm by a felon. At the conclusion of the punishment hearing, the jury found
16
the allegation that Roman had previously been convicted of the felony offense of
aggravated robbery to be true.4 It then assessed Romanâs punishment for the
aggravated robbery offense at 99 yearsâ incarceration and for the unlawful
possession of firearm by a felon offense at 10 yearsâ incarceration. The trial court
signed two judgments consistent with the juryâs verdict, found that a deadly weapon
had been used during the commission of the aggravated robbery, and ordered both
sentences to run concurrently.
This appeal followed.
Forfeiture by Wrongdoing
In his first issue, Roman argues the trial court abused its discretion in holding
the doctrine of forfeiture by wrongdoing barred him from asserting his rights under
the Sixth Amendmentâs Confrontation Clause with respect to the admission of
Wileyâs out-of-court statements into evidence. The State responds that Roman
waived this issue due to inadequate briefing, and even if not waived, his issue fails
because there is sufficient evidence supporting the trial courtâs holding that the
doctrine of forfeiture by wrongdoing barred Roman from objecting to the admission
of Wileyâs out-of-court statements based on the Confrontation Clause and that the
statements were admissible. The State further contends that even if the trial court
abused its discretion, the error was harmless.
4
Roman pleaded âtrueâ to the enhancement paragraph.
17
A. Standard of Review and Applicable Law
The Confrontation Clause of the Sixth Amendment guarantees an accused the
right to confront the witnesses against him. Paredes v. State, 462 S.W.3d 510, 514(Tex. Crim. App. 2015). Under the Confrontation Clause, âtestimonialâ statementsâstatements that were made under circumstances that would lead an objective witness to reasonably believe they would be available for use at a later trialâare inadmissible at trial unless the witness who made them either takes the stand to be cross-examined or is unavailable and the defendant had a prior opportunity to cross-examine the witness.Id.
One exception to the Confrontation Clause is the doctrine of forfeiture by
wrongdoing. Under that doctrine, a defendant is barred from objecting to a witnessâ
out-of-court statements based on the Confrontation Clause when he wrongfully
procures the witnessâ unavailability at trial.5 Colone v. State, 573 S.W.3d 249, 264â 65 (Tex. Crim. App. 2019). This exception applies only when the defendant âengaged in conduct designed to prevent the witness from testifying.â Giles v. California,554 U.S. 353, 359, 365
(2008) (explaining that absence of forfeiture rule
for such conduct âwould create an intolerable incentive for defendants to bribe,
5
The doctrine of forfeiture by wrongdoing also bars a defendant from objecting to a
witnessâ out-of-court statements based on the hearsay rule. See Colone v. State, 573
S.W.3d 249, 265 (Tex. Crim. App. 2019) (stating doctrine of forfeiture by
wrongdoing âtrumps the hearsay ruleâ and defendantâs conduct âlogically
relinquishes any right conferred by the hearsay ruleâ).
18
intimidate, or even kill witnesses against themâ). The doctrine of forfeiture by
wrongdoing is based on the principle that tampering with a witness âshould . . . estop
the tamperer from making any objection based on the results of his own chicanery.â
Colone, 573 S.W.3d at 264(quotation omitted); see generally Davis v. Washington,547 U.S. 813, 833
(2006) (stating doctrine of forfeiture by wrongdoing extinguishes
confrontation claims on equitable grounds and noting that âwhen defendants seek to
undermine the judicial process by procuring or coercing silence from witnesses and
victims, the Sixth Amendment does not require courts to acquiesce. While
defendants have no duty to assist the State in proving their guilt, they do have the
duty to refrain from acting in ways that destroy the integrity of the criminal-trial
system.â).
Texas Code of Criminal Procedure Article 38.49 codifies the doctrine of
forfeiture by wrongdoing. It states that
(a) A party to a criminal case who wrongfully procures the
unavailability of a witness or prospective witness:
(1) may not benefit from the wrongdoing by depriving the
trier of fact of relevant evidence and testimony; and
(2) forfeits the partyâs right to object to the admissibility of
evidence or statements based on the unavailability of the
witness as provided by this article through forfeiture by
wrongdoing.
(b) Evidence and statements related to a party that has engaged or
acquiesced in wrongdoing that was intended to, and did, procure
the unavailability of a witness or prospective witness are
19
admissible and may be used by the offering party to make a
showing of forfeiture by wrongdoing under this article, subject
to Subsection (c).
(c) In determining the admissibility of the evidence or statements
described by Subsection (b), the court shall determine, out of the
presence of the jury, whether forfeiture by wrongdoing occurred
by a preponderance of the evidence. If practicable, the court
shall make the determination under this subsection before trial
using the procedures under Article 28.01 of this code6 and Rule
104, Texas Rules of Evidence.7
(d) The party offering the evidence or statements described by
Subsection (b) is not required to show that:
(1) the actorâs sole intent was to wrongfully cause the
witnessâs or prospective witnessâs unavailability;
(2) the actions of the actor constituted a criminal offense; or
(3) any statements offered are reliable.
(e) A conviction for an offense under Section 36.05 or 36.06(a),
Penal Code, creates a presumption of forfeiture by wrongdoing
under this article.8
(f) Rule 403, Texas Rules of Evidence, applies to this article.9 This
article does not permit the presentation of character evidence that
6
Article 28.01 addresses what matters may be heard during a pretrial hearing. TEX.
CODE CRIM. PROC. art. 28.01.
7
Texas Rule of Evidence 104 addresses preliminary questions the trial court
decides, such as whether a witness is qualified, whether a privilege exists, or
whether evidence is admissible. TEX. R. EVID. 104(a).
8
TEX. PENAL CODE § 36.05(a) (witness tampering); id. § 36.06(a) (obstruction or
retaliation).
9
Texas Rule of Evidence 403 states that a trial court may exclude evidence if its
probative value is substantially outweighed by a danger of unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence. TEX. R. EVID. 403.
20
would otherwise be inadmissible under the Texas Rules of
Evidence or other applicable law.
TEX. CODE CRIM. PROC. art. 38.49.
Incidents of domestic violence perpetrated by a defendant against the witness
whose out-of-court statements the State seeks to admit âmay sometimes be relevant
to determin[e] whether [the defendantâs] particular conduct was designed to prevent
a witness from testifying.â Brown v. State, 618 S.W.3d 352, 356 (Tex. Crim. App. 2021) (citing Giles,554 U.S. at 377
); see also Powell v. State, No. 02-19-00206-CR,2021 WL 5370163
, at *72 (Tex. App.âFort Worth Nov. 18, 2021, pet. refâd) (mem.
op., not designated for publication) (â[T]he domestic-violence context is particularly
suitable for the application of the forfeiture by wrongdoing doctrine.â). But evidence
the defendant committed domestic violence against the witness in the past, standing
alone, does not show that a defendant caused the victim to be absent from trial.
Brown, 618 S.W.3d at 358 (holding âthere needs to be more than simply the past
commission of family-violence assaults to show causation,â such as commission of
âoffense that necessarily causes a victimâs absence,â or evidence defendant
threatened or engaged in conduct otherwise designed to control witness).
Because the doctrine of forfeiture by wrongdoing concerns the admission of
otherwise inadmissible evidence, we review a trial courtâs admission of evidence
under the doctrine for abuse of discretion. See Shepherd v. State, 489 S.W.3d 559,
572 (Tex. App.âTexarkana 2016, pet. refâd). We will uphold the trial courtâs ruling
21
if there is some evidence to support the trial courtâs decision and it is correct under
any theory of law applicable to the case. See Armendariz v. State, 123 S.W.3d 401,
404(Tex. Crim. App. 2003) (stating appellate courts must uphold evidentiary rulings if they are correct under any theory of law supported by record regardless of what reason trial court gives); Osbourn v. State,92 S.W.3d 531, 538
(Tex. Crim. App. 2002) (stating trial court does not abuse its discretion by admitting evidence if there is some evidence to support trial courtâs decision). Direct and circumstantial evidence may be used to establish the defendantâs wrongful conduct caused a witnessâ unavailability. See Brown, 618 S.W.3d at 357 (â[C]ourts have recognized that procurement or causation need not be proven directly, but may be established by inference.â). If the trial court does not issue findings of fact, we review the evidence in the light most favorable to the trial courtâs ruling and assume the court made findings that are supported by the evidence. Shepherd, 489 S.W.3d at 572â 73; see also Schindler v. State, No. 02-17-00241-CR,2018 WL 4924946
, at *6 (Tex. App.âFort Worth Oct. 11, 2018, pet. refâd) (mem. op., not designated for publication) (stating that during Article 38.49 hearing, trial court is sole trier of fact and judge of credibility of witnesses and weight given their testimony). âWhen assessing evidence regarding acts alleged to have procured a witnessâ unavailability, we draw all reasonable inferences in favor of the trial courtâs finding.â Byrd v. State, No. 07-20-00234-CR,2022 WL 2719060
, at *6 (Tex. App.âAmarillo July 13,
22
2022, pet. refâd) (mem. op., not designated for publication) (citing Brown, 618
S.W.3d at 355).
If the trial court abuses its discretion by holding the forfeiture by wrongdoing
doctrine applies and admitting a witnessâ out-of-court statement over a defendantâs
Confrontation Clause objection, the error is not reversible unless it was harmful. A
Confrontation Clause violation is constitutional error that requires reversal unless
we conclude beyond a reasonable doubt that the error was harmless. See Love v.
State, 543 S.W.3d 835, 846 (Tex. Crim. App. 2016); see TEX. R. APP. P. 44.2(a)
(setting forth standard for constitutional error).
When applying the harmless error test for constitutional errors under Rule
44.2(a), courts must âask whether there is a âreasonable possibilityâ that the error
might have contributed to the conviction.â Love, 543 S.W.3d at 846(citing Mosley v. State,983 S.W.2d 249, 259
(Tex. Crim. App. 1998)). The analysis should not focus on the propriety of the outcome. Id.; see also Scott v. State,227 S.W.3d 670, 690
(Tex. Crim. App. 2007) (â[T]he question for the reviewing court is not whether
the jury verdict was supported by the [other] evidence.â). Rather, âthe question is
the likelihood that the constitutional error was actually a contributing factor in the
juryâs deliberations in arriving at that verdictâwhether, in other words, the error
adversely affected âthe integrity of the process leading to the conviction.ââ Scott,
23
227 S.W.3d at 690(quoting Harris v. State,790 S.W.2d 568, 587
(Tex. Crim. App.
1989)).
When deciding whether an error of constitutional dimension contributed to
the conviction, courts evaluate the entire record in a neutral manner and consider
any and every circumstance apparent in the record that logically informs the
harmless error determination. Love, 543 S.W.3d at 846. In doing so, courts may consider non-exclusive factors, such as the evidenceâs importance to the Stateâs case, whether the evidence was cumulative of other admissible evidence, the presence or absence of evidence corroborating or contradicting the out-of-court statement, and the overall strength of the Stateâs case. Davis v. State,203 S.W.3d 845, 850
(Tex.
Crim. App. 2006).
B. Texas Code of Criminal Procedure Article 38.49 Hearing
During Captain Alleyâs testimony, the State requested an Article 38.49
hearing to determine whether Roman was barred from objecting to the admission of
Wileyâs out-of-court statements based on the doctrine of forfeiture by wrongdoing.
As required by Article 38.49, the trial court conducted a hearing outside the presence
of the jury. TEX. CODE CRIM. PROC. art. 38.49(c).10 During the hearing, the State
presented testimony from Captain Alley and Wileyâs mother Laquida Sewell.
10
Article 38.49(c) provides that â[i]n determining the admissibility of the evidence or
statements described by Subsection (b), the court shall determine, out of the
24
1. Captain Wendy Alley
Captain Alley interviewed Wiley on October 29, 2020, 13 days after the
shooting. During the interview, Wiley told Captain Alley:
John Roman had assaulted her by slapping her in the face, which caused
her pain, as he was asking her about her sexual partners that she had
had in the past. She told me that John Roman told her that he would
break her jaw and paralyze her if heâif she told anyone about the
conversations that they had and went on to say that if she told anyone
about the shooting that he had bail money.
When asked if Wiley appeared to be frightened during the interview, Captain Alley
testified, âAbsolutely.â Captain Alley stated that although a subpoena had been
issued for Wiley, Wiley had not been served with the subpoena because the
Columbus Police Department had not been able to locate her. The record reflects
that subpoenas were issued for Wiley at three different addresses on February 17,
2022. The State asked the trial court to take judicial notice of the âabsence of returns
associated with subpoenas.â
Captain Alley testified that Wiley is listed as a missing person on the National
Missing and Unidentified Persons System (NamUs).11 A printout of Wileyâs NamUs
presence of the jury, whether forfeiture by wrongdoing occurred by a preponderance
of the evidence. If practicable, the court shall make the determination under this
subsection before trial using the procedures under Article 28.01 of this code and
Rule 104, Texas Rules of Evidence.â TEX. CODE CRIM. PROC. art. 38.49(c).
11
NamUs âis a national centralized repository and resource center for missing,
unidentified, and unclaimed person cases across the United States.â Home | NamUs
(ojp.gov).
25
information was admitted into evidence for purposes of the hearing as State Exhibit
67. According to State Exhibit 67, Wiley, who was added to NamUs on March 15,
2022, had not been in contact with anyone since January 12, 2022, and âfoul play is
suspected in her disappearance.â NamUs reflects that after a report was filed with
the Houston Police Department on January 21, 2022, HPD opened an investigation
into Wileyâs disappearance under HPD, Case Number 92993-22. According to
Captain Alley, HPD was investigating Wileyâs disappearance as a possible
homicide.
Captain Alley also testified that Roman had a pending charge in Harris
County, Texas for the felony offense of possession of a controlled substance. The
search warrant for Romanâs vehicle and the probable cause affidavit submitted in
support of the search warrant in that drug possession case were admitted into
evidence for purposes of the hearing as State Exhibit 68. The probable cause
affidavit states that when HPDâs Narcotics Tactical Team arrested Roman on
February 2, 2022, they âseized [Romanâs] vehicle, [which they believed] to have
been involved in a homicide (case # 92993-22)â and Roman is âbelieved to be the
only person that drives that vehicle.â The HPD homicide investigation number listed
on the probable cause affidavit is the same as the HPD case number included in
Wileyâs NamUs printout.
26
On cross-examination, Captain Alley testified that the last time she spoke to
Wiley was when Wiley was served with a subpoena in 2021 for a prior trial date,
and she did not know Wileyâs current whereabouts. When asked if she knew
whether Wiley was dead or alive, Captain Alley testified, âAll I know is HPD is
conducting a homicide investigation regarding her.â Captain Alley testified that she
learned of HPDâs homicide investigation in March 2022, approximately six months
before trial.
2. Laquida Sewell
Laquida Sewell, Wileyâs mother, also testified for the State during the
hearing. Sewell testified she learned that Wiley and 34-year-old Roman had been
dating on November 29, 2019, Wileyâs 17th birthday.12 Sewell was concerned about
the relationship because Roman is 17 years older than Wiley, who was only 16 years
old when the relationship began. According to Sewell, Wiley moved out of Sewellâs
home in March 2021, and Sewell never heard from her again.
Sewell testified she had a good relationship with Wiley before Wiley moved
out. When asked how the move occurred, Sewell testified, âOne day I was at work
and never heard from her.â Sewell testified that she â[c]ouldnât get in contactâ with
Wiley and she âdidnât know where she was.â According to Sewell, Wileyâs
Facebook page had been taken down and no one had heard from her. When asked
12
Wileyâs birthdate is November 29, 2002.
27
if she was âaware of any incidents of violence perpetrated by Mr. Roman againstâ
Wiley, Sewell testified that Wiley told her that Roman slapped her once. According
to Sewell, Wiley, who would have been 19 years old at the time of trial, was not the
type of person to cut ties with her family. Sewell also testified that Wiley did not
have any savings, a car, or the type of employment that would support a car payment
when she lived with Sewell.
On cross-examination, Sewell testified that Wiley never told her of any
incidents of physical violence other than the one time Roman slapped her.
According to Sewell, Wiley âleft withâ Roman when she moved out of Sewellâs
home and she âdidnât see [Wiley] until maybe a month later when [Wiley] came and
got the rest of her stuff with two guys.â When asked if she had any evidence that
Roman was involved in Wileyâs disappearance, Sewell testified, âWell, she left with
him.â Sewell had not been in contact with Wiley for over a year and a half and she
âdid not know the kinds of things that [Wiley] was involved in and who her
associates wereâ because Wiley was âbeing kind of secretive.â
On redirect examination, Sewell testified that Wileyâs secretive behavior
began after she started dating Roman. Sewell testified that the last time she saw
Wiley was Motherâs Day on May 9, 2021, and if Wiley had been in contact with any
other family members, they would have told Sewell.
28
After hearing argument from Roman and the State, the trial court found by a
preponderance of the evidence that the wrongdoing by forfeiture doctrine applied to
Wileyâs out-of-court statements. The trial court stated:
Physical violence in the past, domestic violence in the past by itself is
not by itself grounds for adopting 38.49, but thereâs more to this case
than just the domestic violence. There was a history of domestic
violence, but with this case there was an implied threat and I think a
direct threat as well to commit serious bodily injury if Ms. Wiley talked
about this, and I note that the timing of Ms. Wileyâs statement, she gave
her statement on October 29th, less than two weeks after the alleged
shooting, and the threat that he had bail money to get out was clearly
an indication thatâto me that she was being threatened and felt
threatened; therefore, I find that under the circumstances that there is a
preponderance of the evidence, Article 38.49 will apply in this case.
When the State offered into evidence a redacted version of the written
statement Wiley gave to Captain Alley on October 19, 2020, Roman objected to the
admission of the statement on the grounds that â[i]t is hearsay,â its admission
âviolates the Sixth Amendment confrontation clause,â and it âunfairly prejudiced
[Roman] by the surprise of the statement coming in with the witness not being
available.â The trial court overruled the objection and admitted Wileyâs statement
into evidence as State Exhibit 66.
C. Analysis
Roman argues the trial court abused its discretion in holding the doctrine of
forfeiture by wrongdoing barred him from asserting his rights under the Sixth
Amendmentâs Confrontation Clause and in admitting Wileyâs out-of-court
29
statements into evidence. Among other things, the State argues Roman waived this
issue on appeal due to inadequate briefing. Even assuming Roman properly briefed
his first issue, he still does not prevail on the merits.
Roman argues the trial court abused its discretion because the State did not
establish by a preponderance of the evidence that (1) Roman wrongfully procured
Wileyâs unavailability to testify at trial, (2) Wiley was unavailable because of
Romanâs wrongdoing, and (3) Roman intended to prevent Wiley from testifying.
The State responds the trial court did not abuse its discretion because there is ample
evidence supporting the trial courtâs finding that the doctrine of wrongdoing by
forfeiture barred Roman from objecting to the admission of Wileyâs out-of-court
statement based on the Confrontation Clause.
The record reflects that Wiley gave a sworn statement to Captain Alley on
October 29, 2020, less than two weeks after Wilson was shot. In her sworn
statement, Wiley told Captain Alley that Roman took her to his home on October
25, 2020, and told her that âhe was going to move [her] in with him.â Roman
interrogated Wiley about her past sexual partners and slapped her âtwice in my face,
and it hurt me.â According to Wiley,
I was shaking. I was so scared. This wasnât the first time [Roman] has
hit me. [Roman] was telling me that he was going to break my jaw and
paralyze me if I told anybody about what we were talking about.
30
Wiley told Captain Alley that she ran to a friendâs home to get away from Roman.
Roman kept Wileyâs cell phone and, over the next four days, used the phone to call
Wileyâs sister and told her that Wiley âneed[ed] to get [her]self togetherâ and he had
âbeen watchingâ Wiley. Wiley, who did not know where Romanâs gun was located,
was âscared to even go outsideâ and she quit her job. Wiley told Captain Alley that
Roman âsaid if I tell the police about the shooting, that he has bail money.â Captain
Alley testified that Wiley appeared to be scared when she gave her statement.
In March 2021, five months after giving her sworn statement to Captain Alley,
Wiley moved out of Sewellâs home and she left with Roman. Wiley, who is not the
type of person to lose contact with her family, has not spoken to Sewell since
Motherâs Day on May 9, 2021.
Romanâs trial, originally scheduled for August 9, 2021, was reset for October
25, 2021. Wiley was served with a subpoena issued on September 22, 2021.13 On
October 15, 2021, ten days before Romanâs trial, Wiley posted on her social media
account that she and Roman were married.14 Five days later, Roman filed a second
motion for continuance and the trial was reset for April 25, 2022. Wiley disappeared
in January 2022, before the State could serve her with a subpoena for the new trial
13
The subpoena is not included in the appellate record and the record does not reflect
the date Wiley was served with the subpoena.
14
See Brown v. State, 618 S.W.3d 352, 356 (Tex. Crim. App. 2021) (observing other
courts have âheld that marrying the witness can constitute wrongdoing, if done so
that the witness can invoke a spousal privilege against testifyingâ).
31
setting. HPD is investigating Wileyâs disappearance as a possible homicide and
Roman is a suspect in the case.
The record thus contains evidence that Roman, who previously assaulted
Wiley, slapped Wileyâs face nine days after Wilson was shot in the shoulder and
threatened to break Wileyâs jaw and paralyze her if she told anyone about the
shooting. Roman also indirectly threatened to physically harm Wiley when he told
Wileyâs sister that he was watching Wiley, and that if she talked to the police about
the shooting, âhe has bail money.â
Viewed in the light most favorable to the trial courtâs ruling, this evidence
supports an inferential connection between Romanâs direct and implied threats of
violence against Wiley should she talk to the police about the robbery and shooting,
and Wileyâs eventual unavailability at Romanâs trial. See Brown, 618 S.W.3d at 358
(stating history of family violence directed at witness in combination with evidence
defendant âissued any threats or engaged in conduct otherwise designed to controlâ
witness is evidence defendant intended for threats to cause witness to be absent from
trial and resulted in witnessâ unavailability for trial); see also Byrd, 2022 WL
2719060, at *6 (stating when assessing evidence regarding acts alleged to have
procured witnessâ unavailability, we draw all reasonable inferences in favor of trial
courtâs finding) (citing Brown, 618 S.W.3d at 357). There is thus some evidence
supporting the trial courtâs finding that Roman engaged in wrongdoing that was
32
intended to, and did, procure Wileyâs unavailability for trial by directly and
indirectly threatening her with physical harm if she talked to the police about the
robbery and shooting. See Brown, 618 S.W.3d at 357 (â[C]ourts have recognized
that procurement or causation need not be proven directly, but may be established
by inference.â). In light of this evidence, we cannot say that the trial court abused
its discretion by finding by a preponderance of the evidence that the doctrine of
forfeiture by wrongdoing applied and thus Roman was barred from objecting to the
admission of Wileyâs out-of-court statements based on the Confrontation Clause.
See Shepherd, 489 S.W.3d at 572(reviewing forfeiture by wrongdoing doctrine finding under abuse of discretion standard applicable to admission of evidence); see also Osbourn,92 S.W.3d at 538
(stating trial court does not abuse its discretion by
admitting evidence if there is some evidence to support trial courtâs decision).
Roman argues that the doctrine of forfeiture by wrongdoing does not apply
because the evidence supports alternative inferences for Wileyâs failure to appear at
trial. According to Roman, Wileyâs role in Wilsonâs shooting is âunclear,â and he
posits that Wiley may have âexaggerated her written statement to deflect from
herselfâ and she âdisappeared to avoid confronting her own culpability [with respect
to Wilsonâs robbery and shooting] or simply to get away from her circumstances to
start [a] new life in a different place away from her past bad acquaintances and
memories.â In an Article 38.49 hearing, the trial court is the sole trier of fact and
33
judge of the credibility of the witnesses and the weight to be given their testimony
and the evidence. See Schindler, 2018 WL 4924946, at *6 (citing Guzman v. State,955 S.W.2d 85, 89
(Tex. Crim. App. 1997)). To the extent the record supports alternative inferences regarding Wileyâs unavailability to testify at trial, we must defer to the trial courtâs resolution of any conflicting inferences. See Byrd,2022 WL 2719060
, at *6; see also Byrd,2022 WL 2719060
, at *6 (stating when assessing
evidence regarding acts alleged to have procured witnessâ unavailability, appellate
courts draw all reasonable inferences in favor of trial courtâs finding) (citing Brown,
618 S.W.3d at 357).
We hold the trial court did not abuse its discretion by finding that the doctrine
of forfeiture by wrongdoing barred Roman from objecting to the admission of
Wileyâs out-of-court statements based on the Confrontation Clause or by admitting
Wileyâs written statement into evidence over Romanâs Confrontation Clause
objection. See Colone, 573 S.W.3d at 264â65 (stating defendant who wrongfully
procures witnessâ unavailability cannot later challenge admission of witnessâ out-of-
court statements because witness is unavailable for cross-examination).
D. Harmless Error
We agree with the State that even if the trial court abused its discretion by
holding the doctrine of forfeiture by wrongdoing applied and admitting Wileyâs out-
of-court statement into evidence, the error was harmless because (1) the same or
34
similar evidence was admitted without objection, (2) Wileyâs statement was only
one piece of the evidence corroborating Wilsonâs testimony that Roman shot him in
the shoulder while attempting to rob him, and (3) Roman relied on Wileyâs statement
to support his defensive theory that Wilson, who provided direct evidence of the
offense, was neither credible nor deserving of justice.
Wilsonâs testimony was the key evidence at trial that established the elements
of the offense of aggravated robbery.15 Wilson testified that he made arrangements
to meet Wiley in the parking lot of her apartment building and have sex with her in
his SUV in exchange for money. After he got off work, Wilson drove to Wileyâs
apartment building, parked in the parking lot, and waited in his SUV for Wiley.
Wiley got in the front passenger seat of Wilsonâs SUV and then reached back and
unlocked the back passenger-side door. Roman, who was wearing a black baseball
cap and glasses, climbed into the backseat, tased Wilson, and demanded money from
15
To establish that Roman committed the offense of aggravated robbery as alleged in
the indictment, the State was required to prove that Roman, while in the course of
committing theft of property owned by Wilson, and with intent to obtain and
maintain control of the property, intentionally and knowingly threatened and placed
Wilson in fear of imminent bodily injury and death while using and exhibiting a
deadly weapon, namely, a firearm. See TEX. PENAL CODE § 29.03(a)(2) (defining
elements of aggravated robbery with deadly weapon); § 29.02(a)(2) (defining
elements of robbery); see also id. § 1.07(17)(A) (defining âdeadly weaponâ to
include firearm). A person commits theft if he appropriates property without the
ownerâs consent and with intent to deprive the owner of the property. Id. at
§ 31.03(a), (b)(1). ââIn the course of committing theftâ means conduct that occurs
in an attempt to commit, during the commission, or in immediate flight after the
attempt or commission of theft.â Id. at § 29.01(1).
35
him. Roman and Wilson fought for control of the taser in the backseat of the SUV
and when the taser dropped to the floor, Roman pulled out his pistol and shot Wilson
in the shoulder. Roman ran away after the shooting. The physical evidence collected
from inside Wilsonâs SUV, including the black baseball cap, eyeglasses, stun baton,
fired shell casing, and the bullet patterns corroborates Wilsonâs testimony.
Wiley gave a similar account in her sworn statement to Captain Alley,
corroborating much of Wilsonâs testimony. According to Wiley, Roman told her to
text Wilson and tell him that she would have sex with him âfor $140, so that [she]
could get [her] hair done.â When Wilson arrived at Wileyâs apartment building,
Wiley sat down in the front passenger seat of Wilsonâs SUV and then unlocked the
rear passenger side door for Roman. Wiley knew that Roman was bringing his
pistol, but she did not know that he had a taser. According to Wiley, Roman got in
the SUV through the unlocked door and he and Wilson âstarted wrestling in the back
seat.â Wiley could not see anything, but she âheard like three gunshotsâ and then
Roman yelled at Wiley to unlock the door. Wiley unlocked the doors and she and
Roman got out of Wilsonâs SUV before Wilson drove away.
A summary of Wileyâs statement was included in Webbâs probable cause
affidavit, which was admitted into evidence without objection as State Exhibit 63.
In his affidavit, Webb stated:
Roman had Wiley contact Wilson to arrange a meeting because he was
going to make Wilson âcome to an understanding about stopping him
36
from calling herâ. Wiley told Alley that she knew he had a pistol but
didnât know anything about him having a taser. Roman had told Wiley
to bring a towel when she went to Wilsonâs vehicle so he could wrap
up his pistol with it when he was through. Roman later told Wiley that
he would break her jaw and leave her paralyzed if she told the police
what he had done.
During closing arguments, the State argued that Wilsonâs testimony proved
that Roman committed aggravated robbery when he demanded money from Wilson
and shot Wilson in the shoulder. According to the State, Wileyâs statement, the
physical evidence collected from the SUV, and the testimony of the officers and
experts merely corroborated Wilsonâs testimony.
Despite his objections, Roman relied heavily on Wileyâs out-of-court
statement in his closing argument to support his defensive theory that Wilson was a
deceitful sexual predator who could not be trusted to tell the truth. Roman argued
that Wilson lied to the jury when he denied sexually assaulting Wiley, having sex
with her before her 17th birthday, and going inside her apartment, because Wiley
told Captain Alley that Wilson had done each of those things. Roman also argued
that Wilsonâs testimony that Roman demanded money from him was not credible
because Wiley did not say anything about a robbery in her statement.
The record thus reflects that the same or similar material facts included in
Wileyâs out-of-court statement about the shooting and robbery were admitted
without objection through Wilsonâs testimony and Investigator Webbâs probable
cause affidavit. See Sanders v. State, 422 S.W.3d 809, 818 (Tex. App.âFort Worth
37
2014, pet. refâd) (holding any error in admission of statement in violation of
defendantâs right to confrontation was harmless because other unobjected-to
evidence established same facts). While Wileyâs out-of-court statement played a
supporting role in the Stateâs case as one of several pieces of evidence corroborating
Wilsonâs testimony, Wileyâs allegations against Wilson were an important
component of Romanâs defense, because they directly contradicted portions of
Wilsonâs testimony, undermining his credibility, and Wileyâs statement was the only
evidence that Wilson had sexually assaulted Wiley and had sex with her when she
was underage.
Thus, even if Wileyâs out-of-court statement was admitted erroneously, the
admission of this evidence was not harmful because the same or similar facts were
admitted elsewhere without objection, Wileyâs statement was not an important part
of the Stateâs case, Roman used Wileyâs statement case to support his defensive
theory that Wilson was neither credible nor deserving of sympathy, and Wileyâs
statement did not significantly contribute to the strength of the prosecutionâs case.
See id.; Johnson v. State, No. 14-22-00050-CR, 2023 WL 5217800, at *5 (Tex.
App.âHouston [14th Dist.] Aug. 15, 2023, no pet.) (mem. op., not designated for
publication) (holding admission of expert witness testimony harmless because âit
was not particularly important to the Stateâs case, it assisted appellantâs case in
corroborating appellantâs self-defense theory, there was no evidence contradicting
38
[expertâs] conclusions, and it did not significantly contribute to the strength of the
prosecutionâs caseâ).
For these reasons, we conclude beyond a reasonable doubt that to the extent
the admission of Wileyâs out-of-court statement was erroneous, it did not materially
affect the juryâs deliberations. See Scott, 227 S.W.3d at 690.
We overrule Romanâs first issue.
Charge Error
In his second issue, Roman argues the trial court erred in failing to include a
verdict form for the lesser included offense of aggravated assault because the body
and the application paragraph of the charge include language instructing the jury on
aggravated assault and thus the omission of the verdict form was âconfusing and
misleadingâ for the jury. But as the State points out, the jury charge does include a
verdict form for the lesser-included offense of aggravated assault.
The submitted charge instructed the jury regarding the offenses of aggravated
robbery, aggravated assault, and unlawful possession of firearm by a felon. In
relevant part, the jury charge states:
Count II â Aggravated Robbery
...
Application of Law to Facts
Although the state has charged the defendant with the offense of
aggravated robbery, you may find the defendant not guilty of that
39
charged offense but guilty of a lesser included offense. In this case, the
offense of aggravated assault is a lesser included offense of the charged
and greater offense of aggravated robbery.
You may discuss the two offenses in any order you choose, starting
with the offense of aggravated robbery or the offense of aggravated
assault.
In deciding the defendantâs guilt or innocence, however, you should
first address whether the state has proved the charged offense of
aggravated robbery. If you find the defendant guilty of aggravated
robbery, you should so indicate on the verdict form.
To find the defendant guilty of aggravated robbery, you must determine
whether the state has proved, beyond a reasonable doubt, four elements.
The elements are that-
1. the defendant, in Colorado County, Texas, on or about October
16, 2020, intentionally, knowingly or recklessly caused bodily
injury to Craig Anthony Wilson by shooting Craig Anthony
Wilson with a firearm; and
2. the defendant did this in the course of committing theft of
property owned by Craig Anthony Wilson; and
3. the defendant had the intent to obtain or maintain control of the
property that was the subject of the theft; and
4. the defendant used or exhibited a deadly weapon, a firearm.
You must all agree on elements 1, 2, 3, and 4 listed above. If you all
agree the state has proved, beyond a reasonable doubt, each of the four
elements listed above, you must find the defendant âguiltyâ of
aggravated robbery and so indicate on the attached verdict form, titled
âVerdict-Guilty of Aggravated Robbery.â
If you all agree the state has failed to prove, beyond a reasonable doubt,
one or more of elements 1, 2, 3 and 4 listed above, you must find the
defendant ânot guiltyâ of aggravated robbery.
40
If you find the defendant is not guilty of aggravated robbery, or if after
all reasonable efforts to do so you are not able to reach a unanimous
verdict on the charged offense of aggravated robbery, you should next
address whether the state has proved the lesser included offense of
aggravated assault. If you find the defendant guilty of aggravated
assault, you should so indicate on the appropriate verdict form, titled
âVerdict-Guilty of Aggravated Assault.â
To find the defendant guilty of aggravated assault, you must determine
whether the state has proved, beyond a reasonable doubt, three
elements. The elements are thatâ
1. the defendant in Colorado County, Texas on or about October
16, 2020, caused bodily injury to Craig Anthony Wilson by
shooting Craig Anthony Wilson with a firearm; and
2. the defendant did this eitherâ
a. intending to cause bodily injury; or
b. knowing that he would cause bodily injury; or
c. with recklessness about whether he would cause bodily
injury; and
3. the defendant used or exhibited a deadly weapon during the
alleged assault.
You must all agree on elements 1, 2, and 3 listed above.
If you all agree the state has failed to prove, beyond a reasonable doubt,
one or more of elements 1, 2, and 3 listed above, you must find the
defendant ânot guilty.â
If you all agree the state has proved, beyond a reasonable doubt, each
of the 3 elements above, you must find the defendant âguiltyâ of
aggravated assault.
And the verdict form states:
COUNT II â AGGRAVATED ROBBERY
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(Choose One)
VERDICTâNOT GUILTY OF AGGRAVATED
ROBBERY
We, the jury, find the defendant, JOHN ALBERTO ROMAN,
not guilty.
________________________
Foreperson of the Jury
________________________
Printed Name of Foreperson
VERDICTâGUILTY OF AGGRAVATED ROBBERY
We, the jury, find the defendant, JOHN ALBERTO ROMAN,
guilty of Aggravated Robbery, as charged in the indictment.
________________________
Foreperson of the Jury
________________________
Printed Name of Foreperson
VERDICTâGUILTY OF AGGRAVATED ASSAULT
lesser included offense
We, the jury, find the defendant, JOHN ALBERTO ROMAN,
not guilty of Aggravated Robbery as charged in the indictment,
but guilty of the lesser offense of Aggravated Assault.
________________________
Foreperson of the Jury
________________________
Printed Name of Foreperson
Although the jury charge does not include a âNOT GUILTYâ verdict form for the
lesser-included offense of aggravated assault, Roman is not challenging this on
42
appeal. Rather, his challenge is based on his mistaken belief that the charge did not
include any verdict form for the offense of aggravated assault.
Were we to construe Romanâs appellate argument liberally as challenging the
omission of a âNOT GUILTYâ verdict form for the lesser-included offense of
aggravated assault, he still would not prevail because assuming without deciding that
the charge is erroneous, the error is harmless.
We may only reverse for charge error if the error is harmful. See Jordan v.
State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020); see also TEX. CODE CRIM. PROC. art. 36.19 (stating trial courtâs judgment should not be reversed unless record shows jury charge error was calculated to injure defendantâs rights, or unless record demonstrates defendant did not have fair and impartial trial). The level of harm necessary for reversal depends on whether the appellant properly objected to the error. Jordan, 593 S.W.3d at 346 (citing Almanza v. State,686 S.W.2d 157, 171
(Tex. Crim. App. 1984)). If the appellant preserved the error, we review the charge error under the âsome harmâ standard. See Jordan, 593 S.W.3d at 346 (citing Almanza,686 S.W.2d at 171
). âSome harmâ means âactual harm and not merely a theoretical complaint.â Jordan, 593 S.W.3d at 347. If error is not preserved, we review the error under the more stringent âegregious harmâ standard. See id. at 346 (citing Almanza,686 S.W.2d at 171
).
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Most of the charge conference was conducted off the record. During the
portion of the charge conference reflected in the record, the trial court asked Roman
if he had any objections to the charge, and Romanâs counsel replied, âWe object
only to that portion of the charge relating to the lesser included offense of aggravated
assault.â The trial court stated the objection was â[d]uly noted and overruled.â The
record thus does not reflect that Roman objected to the omission of a ânot guiltyâ
verdict form for the lesser-included offense of aggravated assault. See Dixon v.
State, 595 S.W.3d 216, 223 (Tex. Crim. App. 2020) (stating appellant has âburden to bring forth a record showing that error was preservedâ); Broxton v. State,909 S.W.2d 912, 918
(Tex. Crim. App. 1995) (appellate issue âmust correspond to the objection made at trialâ). As such, we may reverse only if the omission of a âNOT GUILTYâ verdict form for the lesser-included offense of aggravated assault resulted in egregious harm. See Jordan, 593 S.W.3d at 346 (citing Almanza,686 S.W.2d at 171
).
Having been properly instructed on the law applicable to the greater offense
of aggravated robbery and the lesser-included offense of aggravated assault, the jury
found Roman guilty of the greater offense of aggravated robbery. See generally
Hawk v. State, No. 05-98-00697-CR, 2000 WL 1682996, at *5 (Tex. App.âDallas
Nov. 10, 2000, pet. refâd) (mem. op., not designated for publication) (âBy finding
appellant guilty of the charged offense, the trial court implicitly rejected finding
44
appellant guilty of a lesser-included offense.â). The juryâs finding of guilty with
respect to the greater offense supports the conclusion that Roman was not
egregiously harmed by the omission of a âNOT GUILTYâ verdict form for the
lesser-included offense. See Render v. State, 316 S.W.3d 846, 854(Tex. App.â Dallas 2010, pet. refâd) (âThe fact that the jury convicted appellant of the greater offense supports the conclusion that appellant was not egregiously harmed by the omission of a not guilty verdict form [for the lesser included offense].â); see also Castillo v. State, No. 10-09-00286-CR,2011 WL 5221238
, at *4 (Tex. App.âWaco
Oct. 26, 2011, pet. refâd) (mem. op., not designated for publication) (same).
Roman does not dispute that there is sufficient evidence to support his
conviction for the greater offense of aggravated robbery. Roman pled âtrueâ to the
enhancement allegation, and after finding the allegation to be âtrue,â the jury
assessed Romanâs punishment at 99-yearsâ confinement for the greater offense of
aggravated robbery. Because the jury found the enhancement allegation to be true,
Romanâs punishment range for the greater offense of aggravated robbery was no less
than fifteen years and no more than ninety-nine years or for life and the punishment
range for the lesser-included offense of aggravated assault was no less than five years
and no more than ninety-nine years or life. Thus, Roman was facing the same
maximum sentence regardless of whether he was convicted of aggravated robbery
or aggravated assault. Because the jury assessed Romanâs punishment at 99 yearsâ
45
confinement, this factor weighs against egregious harm. See Vasquez v. State, 389
S.W.3d 361, 368â69 (Tex. Crim. App. 2012) (stating courts may consider entire jury
charge, state of evidence, arguments of counsel, and other relevant information
revealed by trial record of trial when evaluating error for egregious harm).
In light of the above, we conclude that even if the omission in the jury charge
of a âNOT GUILTYâ verdict form for the lesser-included offense of aggravated
assault was erroneous, the error did not result in egregious harm to Roman.
We overrule Romanâs second issue.
Conclusion
We affirm the trial courtâs judgment.
Veronica Rivas-Molloy
Justice
Panel consists of Justices Goodman, Rivas-Molloy, and Guerra.
Do Not Publish. TEX. R. APP. P. 47.2(b).
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