### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 22
- 00175
- CR

Ali Khalid Mohsin, Appellant

v. The State of Texas, Appellee

FROM THE 277TH DISTRICT COURT OF WILLIAMSON COUNTY NO. 21 -0258-K277 , THE HONORABLE STACEY MATHEWS , JUDGE PRESIDING

O P I N I O N
Appellant Ali Khalid Mohsin was convicted by a jury of aggravated assault with a deadly weapon causing serious bodily injury to a family or household member and sentenced to fifty years ’ confinement. See Tex. Penal Code § 22.02(a)(1) , (b )( 1 )(A). On app eal , Mohsin
conte nds that : (1) the trial court abused its di s cretion by granting the State ’ s motion for forfeiture by wrongdoing ; (2) the court, “ in applying [the rule of forfeit ure by wron gdoing ] to both testimonial statements and inadmissib l e he arsay, prejudiced [him] to the extent that the judgment should be reversed ” ; and (3) the court abused its discretion by denying his application for writ of attachment. We affirm the trial court ’ s judgment of convi ction.

BACKGROUND In the early mor ni ng of January 23, 2021, Mohsin brought his wi fe, Yasmeen Wadiwalla , to Ascension Seton Northwest Hospital in Austin. She had three facial fractures and2 required surgery on her jaw, which had to be w ired sh ut. Throug hout the week f o ll owing her admission , she offe red cha nging account s for the cause of her injuries , variously explaining that Mohsin had am bushed her outside her apartment and punched her in the face, that she ha d tripped and fallen, or that she could not remember what had happened. I n a swo rn written
statement made on January 27th, she attested , “ [My ] friend dropped me off at my apartment. While I was walking to the door [,] I looked around and saw Ali approach me. All I can rememb er was him saying w here were you. After that I blacked out th en just remember being in the grass, then his car. ” Officers arrested Mohsin on Feb ruary 9 th . He was originally in dicted for
agg ravated assault causing serio us bodily injury ; however, the charge was amended in a

re in dict ment on February 10, 2022 , to all eg e that he had used or exhibit ed a dea dl y weapon and that Wadiwalla was a person with whom h e had or had had a dat ing re latio nship. On October 4,
2021 , Wadiwalla signed a “ Re lease of Obligation, ” stating that she no lo nger wished to pursue the charge aga in s t Mohsin , that she had fallen on a sidewalk after having had too much to drink, and that she did not want Mohsin “ to be falsely charged with a felony when [she did not] remember what happened. ” Wadiwalla was served wit h a s ubpoen a by the State twice 1 in a dvance of tri al: by email on February 17, 2022, and in person at her apartment on March 7, 2022. Wadiwalla informed the State on multiple occasions that she wou ld not coo perate with its investigation ,

1 Under the Texa s Code of Criminal Proc edure, a subpoena may summon a p erson to appear “ before a court to testify in a criminal a ction

. . . on a specified day. ” Tex. Code Crim. Proc. a rt. 24.01 (a)( 1)

. A s ubpoena may be served by various means, incl uding delivering a co py of it to the witnes s or “ electronically transmitting a copy of the subpoena, acknowledgment of receipt reques ted, to the last known electro nic address of the witness

. ” I d

. art. 24.0 4(a).3 appear at trial, or testify

. Likewise , on recorded ja il calls with Mohsin, she complained of th e State ’ s persis tence i n attempting to secure her pr esen ce a t trial, stated that she would rather go to jail for a year than testify, and told him that she was not g oing to retur n to her apartment but was going t o stay with friends. Anticipating t hat she either would not appear or would appear and

reca nt her sworn statemen t , which according to the State would ren der her tes t imo ny false

— and arguing that such a rec antation would render her “ unavailable ”

— the State f il e d a “ Bri ef on the Defendant ’ s Sixth Ame n dment Right to C onf ron tation Forfei ted by Wrongdoing , ” 2 requesting that the trial court admit Wadiwalla ’ s out

- of

- court statement s at trial. A hearing was held on the State ’ s requ est, at which the State offered te sti mony from Williamson Coun ty Sheriff ’ s O ffice Investig ator Pete Hughey , who reviewed jail calls between Mohsin and Wadiwalla

. He test ified that Mohsin “ d [id] not want the victim to app ear in court for tria l ” and had advised her to file an affidavit of n on - prose cution and not to appear.
Not ing that there had been approximately 2,400 j ail calls between Mohsin and Wadiwalla since Mohsin ’ s arrest approximately a year earlier

— of which one or two were initiate d by her and many of which she did not answer

— Hugh ey testified about the contents of a sample of fourteen

. In th e calls, t here was an “ ongoi ng , ‘ Well, [Wadiwalla was] d rivi ng [Mohsin ’ s] car, so [she] better not show up for court, ’ ‘ I f [she] wa nt[e d] to show up for court , [he was] going to take the car. ’ ” He repeat edly blamed her for his being in jail and pleaded t hat she “ do something, start something up, stir some shit up, not go to court

. ” He said that he d id not “give a fuck about her” and d id not care what happen ed to her; he “essentially does whatev er [he] feels like doing to her at that moment

. ”

2 The trial court subsequently treated the State ’ s filing as a motion for f orfei ture b y wron gdoing.4 Mohsin told her what to tell the State “ as far a s guilt and inno cence on [h im ]. ” He also told her that she would go to jail if she contradicted her s tatem ent in the release of obli gation , reminded her tha t his father was “ paying her money o r giving her things, ” and assured her that his father would “ take care of her ” and pay the $500 fine if she refused to appear in response to the subpoena. On the final call, recor ded on March 18, 2022, s he informed Mohs in th at she was going to stay at a friend ’ s house “ until this is all fucking over. ” Hughey testified that he had heard “ many calls where [Mohsin]’ s telling her they

can ’ t do anything to you, he ’ s practically shouting it over the phone trying to drill it i n her head and manipulate her into believing that she cannot be picked up on a subp oena
. ” He furt her testified that in domest i c - violence cases, the abuser often has “some sort of control over [the victim] while he’s in jail” and that afte r listening to th e jail calls in this case, he believed that Mohsin “ still has that c ontrol ” over Wa diwalla. On a ca ll with Hughe y on February 17, 2022,

s he stated : “ Do not bother me anymore, I ’ m done, I ’ ve signed the affidavit, I ’ m not appearing,
y ’ all are harassing me, stop. ” At the time of th a t call, Hughey testified, an officer had not yet been t o her apartment.
In addition , Hu ghey testified regarding the contents of messages

— admitted at the hearing

— sent between Mohsin and Wa diwalla through a service that Mohsin cou ld acces s via a
ki osk in the jail. Mohsin cautioned Wa diwalla not to speak with a ny one from the District Attorney ’ s Office and a ssured her that she could not be arrested and brought to court if she failed to appear under the subpoena

. Hu ghey also testif ie d about his interaction with Wadiwalla when he se rved her the second s ubpoena approximately two weeks before the he aring

. She told him that she was not going to coope rate an d indi cated that “ even if she comes , nobody can make h e r say anything

. ”5 S he said t hat “ sh e knew th e law and that

. . . she wasn ’ t g oing to answer quest ions. ” He suggested to the trial court that “ she could still sh ow up and not cooperate , or she c ould just no t show up at all for trial. ” Lastly, Hughey testified concerning the history of abuse in Mohsin and Wadi walla ’ s relationship. The trial court admitted a 2018 judgmen t in which Mohsin was placed on de ferred adju dication for 12 mon ths for assaulting her

. O fficer s had responded to “ a lot of calls ” involving the c ouple, particularly in the l e ad up to t he charg ed offense when “ there w [ere] multiple calls over a span of about seven days where officers had to appear at their home

. ” 3 Many of the calls were for harassment because Mohsin “ would n ’ t leave her alone. ” Mo reover, while Wadiwalla calle d police on ot h er o ccasions to report that she had been assaulted, “ when the cops appeared and s tar t[ed] talking to her , she decided not to go forward [,] and she didn ’ t want to press charges

. ” Hughey testified that t here were also allegations that Mohsin had stabbed her in the leg , an act f o r which a cont emporaneous audio recording made by their young daughter exist s 4 and which she mentioned in a forensi c inte rview ; slashed or let the air o ut of Wadiwalla ’ s father ’ s tires ; and broken into her apartment “ by thro win g s ome sort of object against the wi n dow. ” Hu g h e y t e s t i f i e d t h a t “ [ t ] here are countless times [M ohsin] has shown up

3 Hughey elsewher e referred to “ her apartment ” or “ [t]he apa rtment that [h e] found her in

. ”

4 A side from H ughey ’ s brief testimony, the stabbing was not referenced during the guilt

innocence phase of trial. After the trial court expressed concer n about admitting evidence of the stabbing, t he State advised the court that it was “ not trying to get the stabbing i n, ” to which the court responded , “ Very good, because you knew you weren ’ t going to get i t in. ” During the pu ni shment phase, the aud io recording

— in which Moh sin ack now ledged stabbing “ this dude ” twice

— was admitted , as was a jail call in which Wadiwalla st ated that she had fo rgiven him for

“ stabbing [her]. ” She testified durin g the sentencing hearing that Mohsin was referring to her as

“ dude ” on the re cording and tha t she did not remember her jail

- call statement.6 at her different apartments , at her parents ’ house , trying to break into her parents ’ home while she ’ s staying there

. ” Defense coun sel argu ed that Moh sin ’ s conta ct with Wadiwalla did not amount to

“ coercion or intimidation or threats. ” He characterized the communications as “ ordina ry husband

- and

- wife typ e interactions ” and proposed that Mohsin was not “ coerciv e ” or “ forceful ” but mer ely “ sugges tive ” an d possibly “ [ m ] anipulative. ” Counsel explained, “ [Mohsin] wants this case dismissed. He doesn ’ t want to go to trial, and he wants h is wife to assist him. Can that be construed as something untoward? Perhaps. ” Nevertheless, counsel c oncluded, M ohsin ’ s actions did not merit depr iving him of hi s right to confr ontation. The trial court delayed its ruling until it could revie w the parti es ’ briefing

. Two days later, prior to the s tart of jury selection on the day for which Wadiwalla had b een subpoen aed , the court announced its conditiona l r uling: she would be found to be available and required to testify if she appeared, but if she did not appear, “she ’s unavailable , and her statement will come in. ”
F ollowi ng jury selection, the trial co urt noted t hat Wadi walla had not appeared and appointed her an a ttorney “ to make sure that she ’ s protected in case she does appear ” and “ to make sure that she has somebody that she can speak with that ’ s not a party in the mat ter. ” The State asked w hether the court h ad grant ed its motion for f orfeiture by wrongdoing, and the trial judge stated that she had. On the first day of trial, Monday, March 2 8, 2022, defense counsel filed a n application for a wri t of attachment of Wadiwalla. In his supporting affid avit , couns el averr ed that she was a mater ial witness beca use she had made several exculpatory statements and ha d signed the release of obligation stating that she did not remember what had caused her i njuries.7 Before th e start of trial, the attorney appoi nted for Wa diwalla informed the tr ial

c ourt of her efforts ove r the weekend to secure Wadiwalla ’ s presence. She explained that she had contacted Wadiwalla, who had been “ very re cep tive to a meetin g ” ; that a meeting had been scheduled for Saturday; that Wa diwalla had not att ended; and that the attorney had o ffered Wadiwalla additiona l t imes for a meeting but had not received a response. After the attorney had given her account, t he trial court deni ed Mohsin ’ s application fo r a writ of attachment

. Following the trial and a he aring on punishment at which Wadiwalla appeared and test ified in support of Mohsin , he was convicted and sentenced to fifty years ’ confineme nt. This appeal followed.

DI SCUSSION I. Forfeiture by Wro ngdoing In his first two issues, Mohsin co ntends that the tri al cour t abused its d iscretion by granting the State ’ s motion for forfeiture by wrongdoing and that the error “ prejudiced [him] to the extent that the judgment should be re ve rsed. ” 5
Under the Six th Amendment , a criminal d efendant ha s t he right to b e confro nted with the witnesses against him. U.S. Const. a mend. VI ; Pointer v. Texas , 380 U.S. 400, 406 (1965) (applying Sixth Amendment to s tates)

. The A mendment “ contemplates that a witness who m akes testimonial statements admitted aga inst a defendant will ord inarily be present at trial for cross

- examination, and that if the witness is unavailable, his prior testimony will be introduced only if the defendant had a prior opportunity to cross

- examin e him. ” Giles v. California , 554 U.S. 3 53, 35 8 (2008) (c iting Cr awford v. Washington , 541 U.S. 36, 68 (2004))

.

5 Becaus e Mohsin ’ s second is sue is the har m analysis for his first, we will consider the issues to gether.8 The Confrontation Clause is, however, subject to certa in “ equitable exceptions , ” including the rule of forfeiture by wrongdoing , a doctrine of e stoppel that allows for the admission of out

- o f

- court sta tements over both confrontation and hearsay objections. Colo ne v. State , 573 S.W.3d 249, 264

– 65 (Tex. Crim. App. 2019) ; Gonzalez v. State , 195 S.W.3d 114,
116

– 17 (Tex. Crim. App. 2006)

. “Rules of estoppel will bar relief even for a trial court ruling tha t violat es a mandatory provision in a statute and may even bar relief on what would otherwise be an absolute requirement.” Colone , 573 S.W.3d at 265. The rule is co dified in article 38.49 of the Texas Cod e of Criminal Procedure, which provides in relevan t part:

(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 d epriving the trier of fact of relevan t e vidence and testimony; and
(2) forfeits th e party’s r ight to object to the admissibility of evidence or statements based on the unavailability of the witness as provided by this article through forfeiture by wrongdoi ng. (b) Evidence and statements rel ated to a party that has engaged or acquiesced in wrongdoi ng that was intended to, and did, procure the unavailability of a witness or prospective witness are admissible and may be used by the offering party to make a sho wing of forfeiture by wrongdoing

.
Te x. C ode Crim. Proc. art. 38.49(a)

– (b). A tria l court dete r mine s w hether the rule appli es by a p reponderance of the evidence at a hearing outside the jury ’ s presence
. Id. a r t

. 38.49 (c)

. Whe re the State is the party seekin g to admit the evidence o r statements , it must prove : “ (1) that the declarant

- wi tness is

un availabl e, (2) that the defendant engaged in wrongful conduct, (3) that the wrongful conduct9 procured the unavailability of the witness [ ,] and (4) that the defendant in tended to procure the unavailability of the witness. ” Brown v. State , 618 S. W.3d 352, 3 55 (Tex. Crim. App. 2021) (quoting State v. Cox , 779 N.W.2d 844, 851 (Minn. 2010))

. The State is not required t o s how that the defendant ’ s sole intent was wrongfully t o cause the witness ’ s unav ai lability, t hat the defendant ’ s acti ons constitute d a crimina l offens e, or that any offered statements are reliable.
Tex. Co de Crim. P roc. art. 38.49(d).
In Brown , the Court of Crim inal Appeals surveyed other states ’ approach es to t he rule of f orfeit ure by wrongdoing and favorably quoted the New Mexico S upreme Cour t ’ s

conc lu sion :

[T] he interest in disclosing relevant information at trial is paramount

. . . . [ A ] ny significant interference with that interest beyond the exercise o f legal rights provi ded the defendant b y the trial or constitution may consti tute wrongf ul condu ct. Various forms of manipulation may satisfy that condition, and it may often be the case that the nature of the conduct is less important than the effect of the conduct on the witness ’ s willingnes s or ability to testify at trial.

618 S.W.3d a t 3 56 (inte rnal quot ation marks omitted) ( quoting State v. Maestas , 412 P.3d 79, 88 (N.M. 2018) )

. With respect to the ca usation requirem ent, the Court of Criminal Appeals noted that courts seem to be more “ res trictive ” but “ have recognized that pr ocurement o r causat ion need not be proven directly ” and may inst ead by established by inference. Id. at 356

– 57. The Court also recognized the heightened relevance of the rule i n cases involving domestic violence:

Ac ts of domestic violence often are inte nded to dis suade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a fin ding that t he10 crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution

— rendering her pri or statements admissible under the forf eiture doctrine. Earlier abuse, or th reats of ab use, int ended to dissuade the vic tim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.

Id. at 356 (quoting Giles , 5 54 U.S. a t 377) ; se e Davis v. Washington , 547 U.S. 813, 832

– 33 (2006) ( “ This particular type of crime is notoriously susceptible to intimidation or coercion of the victim to en sure that she does not testify at trial

. ” ) ; Powell v. State , No. 02

- 19

- 00206

- CR,
2021 WL 5370163, a t *72 (Tex. App.

— Fort Worth Nov. 18, 2021, pet. ref ’ d) (mem. op. on reh ’ g , not designated for publication) ( “ [T]he domestic

- violence context is particularly suitable
f

or the application of the fo rfeiture b y wrongdoing doctrine. ” )

. Neve r theless, although

“ d omestic violence conduct may sometimes be relevant to determining whether particular conduct was designed to prevent a witness from testifying , ” “ t he stand ards for find ing forfeiture by wrongdoi ng do not change because a case involves d omestic v iolence

. ” Brown , 618 S.W.3d
at 3 5 5

– 56

. We review a trial court ’ s d ecision to apply the rule of for feiture by wron gdoing for an abuse of discreti on. See Co lone , 5 73 S.W.3d at 263

– 64 ( applying abuse

- of

- discr etion standard) ; Gonzalez , 195 S.W.3d at 126 (c haracteri z i ng admission of out

- of

- court statements under rule as “ an ev identiary rul ing ” )

. An abuse of discretion does not occur unless the trial court acts “arbitr arily or unreasonably” or “without referen ce to any guiding rules and principles.” State v . Hill , 49 9 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v.
State , 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). In other words, we may not reverse the trial court ’ s ruling unless the “decision falls outside the zone of reasonable di sagreemen t.”11 Johns on v. State , 490 S.W.3d 895, 908 (Tex. Cri m. App. 2016); see Henley v. State , 493 S.W.3d 77, 83 (Tex. Crim. App. 2016)

. An evidentiar y ruling

— such a s the one admitting Wadiwalla ’ s o ut

- of

- court
sta tements

— “ will be upheld on appeal if it i s corre ct on any th eory of law that finds support in the record

. ” Gonzalez , 195 S.W.3d at 125

– 26. Both d irect and circumstantial evidence may be used to establish th at a defendant’s wrongful conduct caused a witness’ s unavailability. See
Brown , 618 S.W. 3d a t 3 57 ( noting t hat “ courts have recognized that procurement or causation need not be proven directly, but may be established by inference ” and approving of statement that “ ‘ [i] n cases involving long

- term domestic relationships, various factors may supp ort an inference th at wrongdoing has caused unavailability ’ ” (quoting Mae stas , 412 P. 3d at 90

– 91))

. In an article 38.49 hea ring, the trial court is the sol e trier of fact and judge of the credibili ty of the witnesses and the weight to be given their testi mony an d the eviden ce. See Tex. Code Crim.
Proc. a rt. 38.49 ( b), (c) ; Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)

. Whe n , as her e, the trial court does not issue finding s of fact, we review the evidenc e in the light most favorable to the tri al cour t ’ s ruling a nd assume that t he court made findings that are supported by the record

. See Brown , 618 S.W.3d at 357 ; Shepherd v. State , 489 S.W.3d 559, 572

– 73 (Tex. App.

— Texarkana 2016, pet. ref ’ d)

. Mohsin raises three a rguments in support of his con tention that the tr ial court abused its disc retion by granting the State ’ s motion for forfeiture by wrongdoing : (1) Wadiwalla
was not “ unavai labl e , ” (2) he did not engage in “ wro ngful conduct , ” an d (3) his condu ct did not cause Wadiwalla ’ s unavai la bilit y. See Br own , 618 S.W .3d at 355.12 A. Unavaila bility Mohsin argues that Wadiwalla was not unavailable because the S tate “ failed to make a goo d

- faith effort to obtain her pres ence at trial

. ” See Hardy v. Cross , 565 U .S. 65, 69 (2011) ( “ [A] witness is not ‘ unav ailable ’ for purpos es of the

. . . confrontation requirement unless the prosecutorial authorities have made a good

- faith effort to obtain his presence at trial. ” (quoting Barber v. Page , 390 U.S. 719, 724

– 25 (196 8) )). Specifically , he a ppears to assert th at the St ate should have sought to compel her presence through a writ of attachment.

“ The trial court’s determination of whether the effort to procure attendance or testimony of the absent witness is suffi cient is reviewed under the abuse of discretion sta ndard. ” Ledbetter v. State , 49 S.W.3d 588, 592 (Tex. App.

— Amarillo 2001, pet. ref’d) (citing Mancusi v. Stubbs , 408 U.S. 204, 212

– 13 (1972)) ; see Reed v. State , 312 S.W.3d 682, 685 (Tex. App.

— Houston [1st Dist.] 2009, pet. ref’d). “ The lengths to which t he prosec ution must go to produce a witness . . . is a question of reasonableness. ” Hardy , 565 U.S. a t 70. I t is always possible to think of additional steps that the State might have taken to secure a w itness’ s presence, but “ the Sixth Amendment does no t require the prose cution to exhaust every avenue of inquiry, no matter how unpromising. ” Id. at 71

– 72. A prosecutor is not required to take actions i f there exists a

“ great improbability that such effort s would have resulted in locating the witness [] an d would
h ave led to her production at trial .” Id. at 70. “ The State is not required to engage in clearly futile activities before a trial court can, in its discretion, determine that the State made good

- f aith efforts to produce a witness at trial. ” Ledb etter , 49 S.W.3d at 594 . The State’s failure to request a writ of attachment is merely “ one factor for the trial court to consider in determining whether the State made a good

- faith effort .” Id.13 We cannot say that the trial court abused its discretion by concludi ng that th e State made a good

- faith effort to secure Wadiwalla’s presence at trial. She was served by subpoena twice, including in person on March 7, 2022

— approximately three weeks before the start of trial. See id. ( noting that prosecutor told witness s everal wee ks before trial that his testimony was necessary and that subpoena was served on witness more than three weeks before trial). When Investigator Hughey served Wadiwalla at her house, she did n ot answer the door, appeared only after her d aughter w ent to get her, and stated that she was not going to cooperate or testify. Hughey testified at the forfeiture

- by

- wrongdoing hearing that Wadiwalla did not appear to have a job, that she was usually at her or her father’s house, and that she told Mohsin

on a jail ca ll that she intended to stay at a friend’s house “until this is all fucking over.” On calls and through kiosk messages, M ohsin repeatedly warned her not to appear in court or testify, promised that his father would pay the fine for her failing t o respond to the subpoena, and threatened to call C hild Protective Services (C PS) or have his father take her car if she appeared. In response to this coercion , she filed an affidavit of non

- prosecution and stated on jail calls that she would “ra ther go t o jail for a year for saying nothing than give [Mohsin] like 15 years ,” that she told an investigator that she did not “ want anything to do with the situation a nymore ,” and that she hung up on a prosecutor who had called. Indeed, the State was per sistent e nough that Wadiw alla characterized investi gators ’ and prosecutors ’ efforts to secure her presence as “harassment,” exclaiming on another jail call, “[L]iterally what they’ve been doing has been like harassing me, coming to my apartment, harassing [my daught er], when [she] was trying to go to the s tore. She literally had to come back inside. And then talking to me in my apartment. I told them email me the subpoena. Like, I don’t care. I told you guys I’m over this shit. Coming to my apartment. Coming t o my14 neigh bors’. Like, they need to fuck off.” Because of these efforts, Wadiwalla stated on the call that she was “ never going back to [her] apartment again ” and was “ goi ng to go stay with [her] friends .” Similarly, Hughey testified that on a phone cal l with him on February 25, 2022, Wad iwalla stated, “Do not bother me anymore, I’m done, I’ve signed the affidavit, I’m not appearing, y’all are harassing me, stop.” Consider ing Mohsin’s threats and Wadiwalla ’ s many assertions that she would
not a p pear at tr ial, would not testify, and intended to stay with friends and not return to her apartment, the trial court could have reasonably concluded that any further attempts to contact her would have been futile and counterproductive. See Byrd v. State , No. 07

- 20

- 00234

- CR,
2022 WL 2719060, at *6 (Tex. A pp.

— Amarillo July 13, 2022, pet. ref’d) (mem. op., not desig nated for publication) (concluding that trial court did not abuse its discretion in ruling witness was unavailable where, among its efforts, Stat e sought to contact witness through his counsel, wh o told them witness did not want to be “snitch” ) ; Sanchez v. State , No. 13

- 22

- 00512

- CR , 2024 WL 377855, at *3 (Tex. App.

— Corpus Christi

– Edinburg Feb. 1, 2024, no pet. h.) (mem. op., not designated for publ i cation) (“ There is no requirement that the State t ake futile steps to secure an uncooperative witness’s presen ce for the doctrine to apply.”). At a minimum, the State’s exertions “ far exceed [ed] mere issuance of subpoenas , ” s ee Reed , 312 S.W.3d at 686 , a n d

“ the fai lure to request issuance of an attachmen t was not a conclusive factor ,” Ledbetter , 49 S.W.3d at 594. From this record, we conclude that the trial court did not abuse its discretion by finding that the State made a good

- faith effort to secure Wa d iwalla’s p resence at trial.
Mancusi , 408 U.S. at 212

– 13 ; Ledbetter , 49 S.W.3d at 592 ; Reed , 312 S.W.3d at 685.15 B. W rongful Conduct Moh sin next a rgues that his conduct was no t wrongfu l for purposes of article
38.49

. Although the Court of Criminal Appe als has not def in ed “ w rongful conduct, ” it ha s

— as noted a bove

— quot ed language from the New Mexico Supreme Court recognizing that a ny

“ significant interference ” wi th th e interest in disclosing relevant information at trial “ beyond the exercise of legal righ ts p rov ided the defendant by the trial or constitution ” m ay amount to wrongful conduct

. B rown , 618 S.W.3d a t 356 ( quoting Maestas , 412 P.3d at 88 ). T he con duct ’ s

n ature is le ss important than its effect on a pros pective witness , but “ [v]arious form s of

m anip ula tion ” ma y s uffice. Id. We find persua sive our si ster co urts ’ view of conduct falling within the statute ’ s amb it . W rongful conduct ne ed not be violent or explicitly th reaten physical harm , for exampl e it may also include intimidation, harassment, offe rin g a br ib e , encou raging or pressuring a n indi vidual not to testify, leveraging financial dependence , th reatening to repo rt a
pros p ective witness to CPS , or instructin g a witness on how to avoid service

. See Stapp v. State , No. 06

- 23

- 00016

- CR, 2 023 WL 54 24764, at *6 (Tex. App.

— Texarkana Aug. 23, 2 023 , no pet. ) (mem. op., not desi gnated for publication) (suggesting def endant would provide financial assistance and asking for complai nant ’ s hel p “ in dealing with the charges ” ); B yrd , 202 2 WL 2719060, at * 7 (br ib i ng witness ); McGee v. State , No. 05

- 17

- 01 445

- CR, 2019 WL 2004059, at

* 7

– 8 (Tex. App.

— Dallas May 7, 2019, no pet.) (mem. op. , not designated for publication) ( listing various types of wrongful conduct); Espin oza v. State , N o. 05

- 17

- 00547

- CR, 2018 WL
6716 619, at *13 (Tex. App.

— Dallas Dec. 21, 2018, no pe t.) (mem. op. , not de signated for publication) ( “ repeatedly encourag [ ing] and/ or cajol[ing witness] to a void trial ” ) ; Pena v . State , No. 03

- 08

- 00546

- CR, 2009 WL 2900742, at *7 (Tex. A pp.

— Austin Sept. 9, 200 9 , no pet. ) (mem. op., not designated for p ublication) (threatening to repo rt complainant to CPS)

. “ A direct16 threat or demand f rom the defendant to the witness to avoid service or not appea r in court is not required. What i s requir ed is that the defendan t procured the witness’s absence through

wr ongdoing. ” McGee , 2019 WL 2 004059, at * 7

. The record before us is repl ete with evide nce that Mohsin engaged in wrongful conduct to prevent W adiwal la ’ s testimony . D espite cautio ning that “ t he past commission of
f

amily

- violence assaults ” alone is insuffici ent to establish causation u nder the rule of forfeiture by wrongdoing , the Co urt of C riminal Appeals ha s acknowledged that “ d omestic violence condu ct may sometimes be relevant to det ermining whether particular con duct was designed to prevent a witness from testifying. ” Brown , 618 S. W.3d at 358 ; see Davis , 547 U.S. at 832

– 33 (noting that f amily

- violence cr i mes are “ notoriously susceptible to intimida tion or coercion of the victim to e nsure th at she does not testify at trial ” ). The evidence reflects an exte nsive history of abuse and h arassment by Mohsin

a gainst Wa diwalla

. He was placed on d eferred adjudication for 12 months in 201 8 for assaulting her. I nvestigat or Hughey testif ied th at there w as also an allegation that Mohsin had stabbed her in th e le g, that Hughey had heard Wadiwall a ’ s daughter ’ s re cording of the stabbing, that the daught er mentioned th e stabbing in a forensic inter view, and that a police report was made
reg arding an other i nc ident in which Mohsin b roke into Wa diwalla ’ s apartment by throwing an object through the wi nd ow. He further testified that officers ha d re sponded to numerous cal ls in which s he re ported that Mohsin had physically assaulted or harassed her , that s he would decline to press charge s when police arrived, that Mohsin had sla shed or de flated her father ’ s t ires, and that Mohsin had tried to break into her pare nts ’ house whi le she was stayi ng with them. Hughey also testified that Mohsin said that he did n ot “ give a fuck ab out her ” and t hat he did not care what ha ppened to her ; M ohsin “essentially does wha tever [he] feels like doing to her at that17 moment

. ” Wadi walla told an officer at the hos pital that Mo hsin would search her phone to see if she was talkin g t o othe r m en, that he “ only do es things ” when she goes out or ignores him, that he would punc h or gr ab her du ring arguments, and that h e had stolen h er phone and broken it. Against this backdrop of abu se and manipulation , Mohsin , while incarcerated , eng aged in a persistent and concert ed campai gn of intimidation, coercion, bri bery, and thr e ats, attemp tin g

— over 2,400 calls and dozens of kiosk messages

— to secure Wadiwalla ’ s absence from trial. He repeatedly threatened to have his father take Mohsin ’ s car f rom her i f she appeared to t esti fy and warned that she would go to jail if she came to court in the ca r. Ex plaini ng that this meant that she “ cannot even come to this

— near this county a nymore , ” Mohsin added , “ I scratch my back; you scr atch my back . Remem ber? ” Al ternatively , h e

reassur ed her that if she did not testify, his father w oul d “ g[e]t [her ] with whatever will be, ”

“ help ” her, “ take care of everything for [her] , ” and give her money. She acknowledged at one point that she had received $1 00 from Mo hsin ’ s fa ther. Els ewhere , Mohsi n warned that if she testified , he would “ tell them all the shit and m ake [C PS] be invo []lved and maybe m[ar tial ] l a w , ” their s on would hate and resent her, and Mohsin wo uld “ call around make sure [a] report will be done [he ] got a [ ]lot [of] friends and [ he] can sen d holly da some good info too so don[ ’ ]t make [him ]

. ” He a lso warn ed that , because Wadiwalla had signed the release of obligation, she would be pro s ecuted and jailed if she testified against him. He a dvise d her that “ [t] he lawyer told [him] th at the only thing [his] wife can tell them now since she signed the no n - p rosecution

— she can’t be against [him] anymore because she can get in trouble

. . . . She just has to testify on [ his] behalf and say that [he is] inno cent. ”18 Co nsequently, while Mohsi n is correct that he did not thr eaten Wadiwalla with physical harm o r directly p reve nt the State from l earning of her whereab outs , his conduct nevertheless constituted wrongdoing under article 38.49. Unlike Brow n , this is not a case in which , a sid e from p ast instance s of family violence , t he State “ has not offered evidenc e that the defendant i ssued any thr eats or engaged in con duct otherwise designed to control ” a wi tness

. Brown , 618 S.W.3d at 358

– 59

. In Brown , the State did not “ p oint to any conduct tow ard the victim that would suggest an attempt to discoura ge or pre ven t her from testifying , ” and there w as no evidence that th e d efendant tried to influence the complainant “ to decide not to sh ow up for
court. ” I d. Here, b y contrast , there w as evidence of Mohsin ’ s efforts to threaten, co erce , and influence Wadiwalla and t o discourage her f rom testifying

.
C. Causation
T hird, Mohsi n argues that “ an y alleged mis conduct ” did not cause Wadiwalla ’ s

unava ilability and that “ it is a pparent that [she] had either recon ciled or simply no longer wanted to press ch arges. ” In its survey o f state interpreta tions of the rule of for feiture by wron gdoing in
Brown , the Court of Criminal Appeals q uoted decisions from t he high co ur ts of New M e xic o and
New Yo rk, w hich concluded tha t “indirect and attenuated consequences will not satisfy the
causat ion condition for purposes of forfeiture , ” id. at 356 (qu oting Mae stas , 412 P.3d at 90 ) ; that

“ something more like a ‘precipita ting and substantial’ cause may be requ ired, and even a determ ination that the wrongful conduct was ‘the real reason’ for unavail ability , ” id. at 3 57 (quoting Mae stas , 412 P.3d at 90 ) ; t hat it is “ not enough that the defendant e xpressed hope that the witne ss would not testify agains t him at tri al , ” id. (quoting Peopl e v Smart , 12 N.E.3d 1061,19 1067 ( N.Y. 2014) ) ; and that “ misconduct must have been ‘ a significant cause of the witness ’ s deci sion not to testify , ” i d. (quoting Smart , 12 N.E.3d at 106 7 )

. The Court noted, howe ver, that

cou rts “ have re cognized that procureme nt or causation need not be proven directly, but may be established by inferenc e ” and that “ [i] n cases involving long

- term d omestic relationships, various factors may support an inference that wrongdoing has caused un avai lability.” Id. (quoting
Maestas , 4 12 P.3d at 90

– 91).
As discuss ed above, th e facts of this case are di stinguishable from th ose of
Br own , in which the Court of Criminal App eals held that the pas t commission of family

violence

- assault offenses alone is in sufficient to prove causat ion where t he State othe rwise failed
to show any conduct intended to control or influence the witness, there was no “ logical connecti on ” between the defendant ’ s conduct and the witness ’ s re fusal to speak with law enforcement, and the State “ did not point t o any act b y [ defendant] that might have motivated ” the witness ’ s conduct. Id. at 3 58

– 59. In the con text of Mohsin ’ s extensi ve history of domestic violence, he pleaded for Wa diwalla not to cooperate with investigators ; pres sured her to sign a n aff idavit of no n - pros ec ution ; erroneously assured her that she could not be arr ested or made to testify ; told he r to i nsist on his innoc ence to pol ice and the trial judge ; offered her financial incentives not to appear at tria l; and threate ned to report her t o CPS , turn their son against her , and ha ve his father take Mohsin ’ s car fro m her if she appeared

. T hrough ou t the jail calls and
ki o sk messages, Mohsin alternated professions of his love with insults, demeaning language , and accusations of inf idelity

. Bu llock v . State , -- - S.W.3d

--- , --- , No. 01

- 22

- 00076

- CR, 2023 WL 8939274, at * 4 (Tex. App.

— Houston [1st Dist. ] Dec. 28, 2023, no pet. h.) ( “ The record reflects evidence of an abusive cycle in their communications. Often th e subject of t he same email chain changes from ever yday issues, like coparenting and insurance, to Bullock th reatening and20 harassing Michelle

. ” ). He stated that he d id not “ give a fuck about her ” and that he did not care what happened to her . He “essentially d [id] wha tever [he] fe [ lt] like doing to her a t that
moment

. ” He also viola ted the pro vision of the tr ial court ’ s em ergency protection order prohibiting him fr om communicating with Wadiwal la , including by r epeatedly meeting with her
in person in violation of jai l rules. 6
Althou gh Mohsin asserts that Wadiwalla ’ s “ de cision to not attend the [trial] was one made from an independe nt desire to no longer proc eed wit h the prosec ution and arguably from an independent wish to reconcile with [him] , ” the trial court was the sole tr ier of f act and judge of credib i lity at the ar ticle 38.49 h earing , and, to the extent the record supports alt ernative inferences regarding her unavailability to testify at trial, we must defer to the trial court’s resolution of any conflicting infe rences. See Bro wn , 618 S.W.3d at 355, 358; Guzman , 955 S.W. 2d at 89 ; Shepherd , 489 S.W.3d at 572

– 73 . Viewing the re cord in the light m ost fa vorab le t o the trial court ’ s ruling, we conclude that the trial court did not abuse its d iscret ion by granting the State ’ s motion for forfeiture by wron g doing. Because the t rial court did not err, we need not ad dress Mohsin ’ s seco nd issue , co ncerning harm. See Te x. R. App. P. 47.1 ; Garza v.
State , 7 S.W.3d 164, 165 (Tex. Crim. App. 1999)

. We overr ule his first issu e.

6 Following the heari ng on the mo tion for fo rfeiture by wrongdoing , the State became aware that M ohsin and Wadiwalla had ar ra n ged an in

- person vi sit at th e jail for 8 p.m. that night. On the State ’ s request , jail personnel prevented the visitation. Th e next day, the trial ju dge explained that she had spoken with a jail off icial , who had informed her that the jail ha d a policy of “ no visitation eve r with t he complaining witness ” and that W a diwalla “ s hould have never bee n ever allowed to visit

. ” During defense counsel ’ s closin g argument at the heari ng, he stated that Wadi walla had visited Mohsin at th e jail “ at least seven time s ” in the p receding five month s.21 II. Writ of Att achment In his third i ssue, Mohsin contends t hat the trial c ourt abused its disc retion by denying his application for a writ of attachme nt. He argues that Wadiwalla was a material witness beca use she had made various statement s that he did not assault he r and that because s he did not appear for tria l, he “ was deprived of any witnesses who could testify to the true nature and details surro unding the alleged offense. ” Article 24.12 of th e Texas Code of Criminal Procedure provides:

When a witn ess who reside s in the county of the prosecution has been du ly served with a subpoena to appear and testify in any cr iminal action or proceeding fails to so appear, the attorney representing the state or the defendant may re quest that the court issue an at tachment for t he witness. The reques t must be filed with th e clerk of the court and must include an affidavit of t he attorney representing the state o r the defendant, as applicable, stating that the affiant has good reason to believe, and does believe, th at the witness is a material witness.

Tex. Code Crim. Proc . art. 24.12

. 7 A writ of attachment com mands a p eace o ff icer “ to take the body of a witnes s and bring him before such court, magistrat e or grand jury on a day name d, or forthwith, to testify [o] n behalf of the S tate or of the defendan t, as the case may be

. ” Id. art. 24.11. F or purposes of the statute, “ a subp oena filed by the State inures als o to the benefit of the defendant . . . . If a witness is served and fails to appear, either side is ent itled to a writ of attachment. ” Erwin v. State , 729 S.W.2d 709, 713 (Tex. Crim. App. 1987), superseded by

sta tute on other grounds as recognized by Bu rks v. State , 876 S.W.2d 877, 904 (Tex. Crim. App. 1994)

.

7 Althou g h both the United Sta tes and Texas Constitutions provide that a criminal defendant has the right to compel the attendance of witnesse s at tri al , Mohsin does not raise a constitutional cl aim

. See U.S. Const. amend. VI; Tex. Const. art. I, § 10

.22 In 2017, articl e 24.111 of the Code of Cr imin al Procedure was amended to require a h earing to be held bef ore issuance of a writ of attachment and to permit the t r ial judge to issue an attachment o nly if she determines that issuance is “ in the b est interest of justice

. ” Tex. C ode Crim. Pro c. art. 24. 11 1 ( b) ; see Act of April 5, 2017, 85th Leg., R.S., ch. 292, § 3, art. 24.111,
2017 T ex. Gen. Laws 541, 542

. In makin g the best

- interest determ ination, the trial c ourt must consider the a ff idavit supporting the req uest for the writ of attachment and appoin t an attorney to
rep resent the witness at the hearing

. Tex. Code Crim. Proc. art. 24.111(c), (d). Although “ bes t interest of justice ” is not de fined in the Code , the term “ intere st s of justice ” has been defined as both the “ proper view of what is fair a nd right in a matt er in which the decisio n - maker has been granted discret ion , ” Interests of Justice , Black’s Law Dictionary (11th ed. 20 19) , and “ a judge’s discretion to make a rulin g in the inter ests of fairness and equity in a particular situation depend ing on the facts , ” Ex parte Pointer , 492 S.W.3d 318, 320 (Tex. Crim. App. 2016) ( concerning appointment of counsel for indigent habeas a pplicants ). As the State correct ly points out, Mohsin d oes not address the “ best interes t of justice ” or article 24.11 1 in his brief. A lthough the trial court di d not ma ke an explicit finding wit h respect to its best

- interest determ ination, we may inf er the finding from its ruling

. S ee Chadwick v. State , 309 S.W.3d 558, 561 (Tex. Crim. Ap p. 2010) ( “ [W] e will imply any f indings of fact su pported by the evidence and necessary to support the trial judge ’ s ruling when the judge failed t o make explicit fin dings. ” (citing Gutierrez v. State , 221 S.W.3d 680, 687 (Tex. Crim. App. 2007) ) )

. F urther, t he record supports a determi nation that granting Mohsin ’ s request for a writ of attachment would not have been in t he best interest of justice. As examined abov e, Mohsin spent much of the time f ollowing his arrest attempt ing to procu re Wadiwal la ’ s absence23 from tri al thro ugh threats, intimidation, and m an ipulation. H is state ments on jail calls with her refl ect a belief t hat were she not to tes tify at trial, the c harge against him would be dropped , and he would be released. O n ly a fter the trial court granted the St ate ’ s motion for f o rfeiture by

wro ngdoi ng and ruled that Wadiw alla ’ s statements would be admiss ible despite h er unavailability did he file th e writ appl ication. In light of t he abusive dy namics e viden t in their relationship and his repeated ende a vors to i nfluence her statem ents to law enforcem ent and
prose cutors , al lowing him to compel her prese nce at trial woul d have undermined the court ’ s forfeiture ru ling and created , at a minimum , a risk of tampering and perju ry. Indeed, the trial
court

— apparently r ecognizing that r isk

— had earlier stated t hat were Wadiwalla to a ppear and testify that she could not remember what had happened to cause her i njuries, she could be

“ deemed unavailable. ” F or these reasons, the trial court did not abuse its discretion by de nying Mohsin ’ s applic ation for a wr i t of attachment . W e therefo re overrule his t hird issue.

CONC LUSION Hav ing overruled or not reach ed each of Mohsin ’ s issues, we a ffi rm the trial
court ’ s judgment of conviction.

__________________________________________ Edward Smith , Justice Before Justices Baker, Kell y, and Smith Affirmed Filed: April 30, 2024