“While There Is A Soul In Prison, I Am Not Free.

You didn’t say King’s X”—The First Deadly Sin of Appellate Law

Garcia v State.  December 1, 2022.  13th Court of Appeals.  Do Not Publish.  Memorandum Opinion.  Contreras, Longoria, Silva.

After he was arrested for a felony DWI in January 2007 Javier Barrera Garcia pleaded guilty.  Because he did not speak English or understand the plea, when he entered the plea, the trial judge reversed it.  Then, he was tried for the case over fourteen years later.   There were three Brownsville Police Department Officers involved and of course, all those years later, none of them remembered Mr. Garcia or his arrest.  The State tried to “refresh their memories” by having them read the reports they had written way back then. The defense argued that that testimony should not be allowed, because they couldn’t remember the event.

Here is how the first deadly sin works:  it is called Preservation of Error.  If the lawyer does not phrase his objection correctly or does not make it at the right time, the appellate court says, “Well, your trial may be based on a mistake the judge made in the law, but your lawyer didn’t say “King’s X” so we’re going to hold it against you.”

This is required by Texas Rule of Appellate Procedure 33.1. The appellate courts won’t review the case unless the lawyer objected to the trial judge, stated the reason for the request “with sufficient specificity to make the trial court aware of the complaint” and then, the trial judge ruled or refused to rule.  Now, the complaint should not even have to be made if the “grounds were apparent from the context.”

In this case, the old memories were what this case was about so there were pellucid grounds.  To the testimony of the first officer, the defense lawyer twice objected that the officer couldn’t remember, his report didn’t refresh his memory and that he couldn’t even identify Mr. Garcia.  The judge said, “Overruled.”

Slapped once, on the second officer the defense lawyer tried a different a different tack and asked the officer whether he had any personal knowledge or memory of the events and he answered, “I don’t recall.  It’s too long.”  The officer gave a similar answer to later questions about the officer’s actions on the night of the arrest.  The appellate court says:  “Garcia never objected to Officer Garza’s testimony.”  The defense lawyer had just made the argument and objection on the first officer, so everyone in the courtroom knew what the complaint was.

Then with the third officer the defense lawyer tries again.  He asked the third officer whether he could, “out of [his] own personal knowledge, identify Mr. Garcia as the same person that [he] arrested” in 2007. Officer Mendoza ultimately responded, “probably not.” Based on Officer Mendoza’s testimony, Garcia “ask[ed] that [Officer Mendoza’s] testimony be stricken as to the identification.” The trial court overruled Garcia’s objection.  The other approach didn’t work, so maybe the judge will listen when I show this officer can’t even testify Mr. Garcia was in the driver’s seat.  This didn’t work either with the trial judge.

The 13th Court says, you did OK on officer number one, but not on two or three.  “You didn’t say King’s X or any other magic words that would exclude the ‘possibility’ that the officer’s memory was refreshed, nor does it prove that Officer Mendoza testified exclusively from his report.” (What else, then?  A dream? A visitation?  A word from a little bird?)  “Your client loses, Buddy.”

So, what is wrong with all this.  The main thing is that this a 14-year-old case, so of course the police won’t remember it.  It’s too old to try again.  Witnesses should only be allowed to testify to what they know about.

What about accepting that and just putting the reports into evidence.  These reports are excluded from trial because they are hearsay and considered unreliable.  The 13th offered a work around:  Under 803(5) the reports can be “read into evidence.”  The problem with this was that no one offered to read it, and it still would have prevented Mr. Garcia’s lawyer from cross-examining the officers as the Confrontation Clause permits.

Then in one fell swoop, the 13th commits two more of the deadly sins:  “Substantial rights are not affected by the erroneous admission or exclusion of evidence if the appellate court, after examining the record as a whole, (deadly sin 5) has fair assurance that the error did not influence the jury, or had but a slight effect (deadly sin 2).”

How can we save the appellate courts from themselves?  The best way is to always say, “King’s X.”  This takes some planning.  In death penalty jury selection, we wrote out the objection and each the three lawyers would read the whole objection into evidence every time it came up—dozens of times.

In this instance, the card written before hand to be read every time a police officer tries to read something from the 14-year-old report would sound something like this:

“Your honor, we object to this question from the report on the grounds that this officer has no personal knowledge of this fact in his report and even after attempting to refresh his memory from the report, he doesn’t remember,  We object under Texas Rules of Evidence 602, 402, 802, 403 and the Confrontation Clause, that is we object that the officer has no personal knowledge of the events, because he has forgotten, this testimony is not relevant because it is from a witness who doesn’t remember the event, it is hearsay because this 14 year old report is offered for the truth of the matter stated, it is prejudicial and it is not an exception under Rule 803(5), because the report was not read into evidence and because doing so would have violated the Confrontation Clause as stated in Crawford v Washington and Article I, Section 10 of the Texas Constitution.”

This objection would have to be read objecting to each officer’s testimony and to each question asked the officer from the report.

Also, a Rule 104 Motion with a ruling before trial may have prevented the introduction of this police testimony or at least preserved the error.

That is a lot of nuisance for what the lawyers and the judge already knew, but it may keep the appellate judges from saying, “You didn’t say King’s X.  Your client loses.”