COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS I N THE MATT ER OF M.H.V .-P. § § § § § § No. 08-09-00291- CV

Appea l from the 65th District Court of El Paso County , Texas (TC# 05,00253)

O P I N I O N On September 23, 2009, a jury deter mined that M.H.V.-P., Appellant, eng ag ed in delinquent conduct by

committing the off

ense of assa

ult, and the trial cour

t placed him on probation until his eig hteenth birthday , which o cc u rr ed ap proxi mately six months later on April 4, 2010. In his sole issue on appea l, Appellant contends that the trial court violated his confr ontation rig hts by admitting

a witness statement into evidenc e at the adjudication hear ing. For the rea sons that follow, we aff irm. BACK GR OUND On Fe bruar

y 16, 2009, the complainant was at school when Appellant, a much bigg er person than he, called him a “fa g g ot” as he walked past Appellant in the school hallway

. Appellant started walking behind the complainant and then pushed him. The complainant attempted to keep walking , but Appellant pushed him ag ain. At that point, the complainant turned around and asked what his problem was. Appellant responde d that he did not like him and punched the complainant in the fac e with his fist. The complainant tried to defe nd himself by pushing Appellant b ac k , b u t Appellant lifte d h i m fr o m his leg s and pushed him down to the floor. Appellant continued to punch the complainant all over his body and stomped on him with his fee t, as well. The assault only stoppedwhen two tea cher s pushed Appellant a way . L .C., a classmate, witnessed the assault. Howeve r, at the time of trial, she did not reme mber any thing about the fig ht, nor did she remember what she t old the s chool s ecur ity office r about the assault. At that point, the State soug ht to introduce L .C.’s written statement based on Rule 804(a) (3), which provides for the admission of hear say when the de clar ant ca

nnot remembe r wha

t oc curr ed. See T E X . R. E V I D . 804(a) (3). Appe llant, however , objected that admission of the statement would violate his rig hts to confr ontation. The trial court overr uled the objection, but the parties ag ree d that only a portion of L .C.’s statement would be a dmitted. The statement, as a dmitted, read: [Appellant] saw [t he complainant] and followed him an d s t ar t ed pushing him and hitting [t he complainant] out of nowher e. And [t he complainant] fell to the floor, so [t he co m p l ai n an t] g ot up and defe nded himself cause [si c] he was g etting hit by [Appellant]

. [Appellant] just started to hit [t he complainant] and thats [si c] not rig ht. S.M., the com

p la ina nt’s former g irlfriend, did reme mber the fig ht. S.M. rec alled that she was in class when L .C. enter ed and told her that Appellant was fig hting with the complainant. S.M. then
went into the hallway and saw the boy s punching eac h other. When Appellant stopped, S.M. noticed that the complainant’ s lip was bleeding

. Ke l l y Ha rris, a teac her, rec alled that she was in her classroom when she hear d some g irls y elling, “[Appellant], stop.” Har ris saw Appellant leave her classroom, and when Har ris g ot outside her classroom door, she saw Appellant hitting the complainant. Har ris noticed that the complainant tried to push Appellant awa y , in a defe nsive manner . But Appellant “flipped” the complainant onto the floor. Despite Har

ris’ instruct i ons to stop hitting the complainant, Appellant continued on, striking the complainant “numer ous” times. The assault did not stop until a male teac her, Ger ardo Saucedo, w as able to pull Appellant off of the complainant. Saucedo testified that upon leaving his classroom, h e rec alled seeing Appellant punch thecomplainant “over and over ag ain.” Saucedo noticed t hat t he co mplainant had his hands over his

head, trying to defe nd himself. Saucedo then g ot in the middle of both of t h em an d t ri ed to push Appellant back. When the assault cea sed, Appellant tried to leave the schoo l an d g o home, but Saucedo told him to sta

y . Saucedo took Appellant into Ha rris’ classroom, and Appellant told him that “they just got in a fig ht.” Cy nthia Br itton, another teac her, stepped into the hallway , having hear d Har ris y ell, and saw Appellant “beating” the complainant, who was lying on the floor. Specifi ca l ly , Br itton saw Appellant holding onto the complainant’s shirt and “viciously beating him,” despite the complainant’s attempts to g et awa y . Appellant only stopped when she saw Saucedo pull him off of the complainant. After the assault, Br itton followed Appellant and Saucedo into Har ris’ classroom. There , she asked why he was fig hting, and Appellant responde d that the complainant “flipped” him off and he was taug ht to stand up for himself. Br itton replied, “Wow, y ou’re a hothead. That cause d y ou to go a

nd beat somebody

up? Be cause he flipped you off? ” I g nacio Estorg a, the assistant principal, asked the teac hers to provide statements as to what happene d. Estorg a also spoke with Appellant about the incident, and Appellant told him that he ran afte r the com plainant, afte r the complainant flipped him off. Acc ording to Appellant, the complainant punched him first, and then they started fig hting. Rita Rivera, Appellant’s mother,

rec alled see ing a bruise on Appellant’s cheek when she went to pick hi m up from school a fter the incident occ urre d. At trial, Appellant testified in his defe nse. He claimed that he was inside Har ris’ classroom talking to L .C. about J eff

rey Starr, a cele brity

. As Appellant asked L .C., “I sn’t he a fag g ot,” ref err ing
to Starr, the complainant walked by

. When the boy s made ey e con t act, Appellant stated that “temper s wer e flaring ,” and the complainant g ave Appellant the fing er. Although Appellant knewthat the complainant was not very intimi dating – indeed, the complainant was much smaller than him

– Appellant left the classroom and as k ed the complainant, “What’s y our problem,” and the complainant responde d that “you’re a bitch.” Appellant next claimed that the complainant pushed him, so he pushed the complainant back. Appellant then turned to g o back into the classroom, but he hear d the complainant take a step towards him. When A ppellant turned around, he alleg ed that the complainant punched him on the chin. Thinking the complainant should g et what he deser ved, Appellant then s t arted fig hting with the complainant. Appellant “put” the complainant on the g round, and Appellant fell on top of him. They only stopped fig hting when Saucedo separ ated them. Acc ordingto Appellant, he simply defe nded himself. DISCUSSIO N In his sole issue prese nted for our revie w, Appellant contends that t h e trial court err ed by admitting L .C.’s statement i n t o evidenc e over his Confrontation Clause objection. The State responds that the statement was proper ly admitted under Rule 804(a) (3), and that in the alternative, if the statement wa s err oneously admitted, the er

ror wa s harmless. Standard of Review Gene rally , we revie w a trial court’s decision to admit evidenc e under an abuse- of-discr etion standard. W

eatherred v. State , 15 S

. W.3d 540, 542 (Tex. Crim. App. 2000); Coffi n v. State , 885 S.W .2d 140, 149 (Tex. Crim. App. 1994). And s o l o n g as t h e decision to admit that evidenc e is within the z one of rea sonable dis agr ee m en t , we will not find an abuse of di scre tion. Montgomery

v. State , 810 S

. W

. 2 d 3 72, 380 (Tex. Crim. App. 1990) (op. on reh’ g ). Howeve r, in revie wing a Confrontation Clause objection to the proff ere d evidenc e, we revie w the trial court’s leg al ruling de

novo . W all v. State , 184 S.W .3d 730, 742 (Tex. Crim. App. 2006). Applicable LawThe United States Constitution g uara ntees an acc used, in all fede ral and state prosec utions,
t h e ri gh t “to be confr onted with the witnesses ag ainst him.” U.S. C O N S T . amends. VI , XI V; Crawf ord v. W ashington , 541 U.S. 36, 4 2 , 1 2 4 S.Ct

. 1354, 158 L .Ed.2d 177 (2004); Pointer v. Texas , 380 U.S. 400, 406, 85 S.Ct

. 1065, 13 L .Ed.2d 923 (1965) (applyin g t he S ix th Amendment
to the states). Confrontation rig hts are implicated wher e an out-of-c ourt statement i s m ade by an absent wi t n es s and that statement is testimonial in nature

. Crawf ord , 541 U.S. at 50-52. Once implicated, such testimonial hear say is admissible only if (1) the decla rant is unavailable and (2) the defe ndant had a

prior opportunity

to cross-e x amine the de clar ant. Id . at 53-54. Application Initially , we addres s t he State’s argument that Crawf ord does not apply in a juvenile adjudication hear ing. For support, the State relies on In re M.P. , 220 S.W .3d 99, 110 (Tex. App.

– Waco 2007, pet. denied)

. Ho we v er , t h e W aco Court of Appea ls’ decision in M.P. conce rned the rig ht to confr ontation at the dispositi on phase of the juvenile proce eding , not the adjudication phase. See id

. The adjudication phase is differ ent from a dis position proce eding or a transfe r hearing , as it is t he only

proce edingat which the juve nile can be acquitted of any alleg ed wrong doing. At the adjudication hear ing, the juvenile i s gu ara nteed the same constitutional rig hts as an adult in a criminal proce eding

. See In re W inship , 397 U.S. 358, 359, 90 S.Ct

. 1068, 25 L .Ed.2d 368 (1970). Neither the protec tions aff orded by the Four

teenth Amendment nor the Bill of Rights are limit ed to just a dults. In re Gault , 387 U.S. 1, 13, 87 S.Ct

. 1428, 18 L .Ed.3d 527 (1967); State v. C.J.F. , 183 S.W .3d 841, 847 (Tex. A pp. – Houston [1s t Dist.] 2005, pet. denied) (citations omitted). Indeed, in Gault , the United States Supreme Court deter mined that juveniles are entitled to notice of char g es, d e f e n s e c o u n s e l, the privileg e ag ainst self-inc rimination, and confr ontation of and cross- e xa mi n a ti o n of witnesses. In re Gault , 387 U.S. at 49; Hidalgo v. State , 983 S.W .2d 746, 751 (Tex. Crim. App.1999). Thus, we conclude that M.P. is inapposite and hold that Crawf ord applies at the adjudication hear ing. We now turn to the State’s second argu m en t , t h at is, that the trial court did not abuse its discretion in admitting the statement as that admission fell within a firmly rooted hear say exception, namely , Rule 804(a) (3). That rule provides for the admission of cer tain hear say when the decla rant testifies to a lac k of memory on the subject matter of her state ment. SeeT E X . R. E V I D . 804(a) (3). Howeve r, bo t h the Supreme Court and the Court of Criminal Appea ls have made clea r that the Confrontation Clause trumps any hear say exception. Indeed, a “stateme nt is inadmissible absent a showing that the decla

rant is prese ntly unavailable and the defe ndant had a pri o r o p p o rtunity for

cross-e x amination, even if the s tatement ‘falls under a “firmly rooted hearsa y exceptio n” or bear s “par ticularized g uara

ntees of trustworthiness .”’” W all , 184 S.W .3d at 734-35 (quoting Crawf ord , 541 U.S. at 59- 60, 68). Thus, even if the statement was a dmissibl e under Rule 804(a) (3), an issue

we do not rea ch, we must still decide whether admission violated Appellant’s confr ontation rig hts. In a Confrontation Clause analy sis, the threshold question is whether the statement at issue is testimonial or non-testimonial in nature

. W ilson v. State , 151 S.W .3d 694, 697 (Tex. App. – For t Worth 2004, pet. ref

’d); see also Crawf

ord , 541 U.S. at 68-69. A statement is “testimonial” if it is

a “solemn decla

ration” made for the purpose of establishing some fac t. Crawf ord , 541 U.S. at 51;

see also Russeau v. State , 171 S.W .3d 871, 880-81 (Tex. Crim. App. 2005). Wit hout a doubt,
statements derive d from police interrog ations are indisputably testimonial. See Crawf ord , 541 U.S. at 68. Her e, we believe that L .C.’s statement falls into that same cate g ory . Indeed, the statement

was made to the school secur ity office r, written on a document titled “Student Incident Report,” and signe d by L .C., acknow ledg ing that the same “is true to the best of my knowledg e.” I t was made forpurposes of deter mining what happene d, and L .C. describe d the incident in de tail, e x plaining how the fight started, what happene d during the fight, and why Appellant attacked the complainant. I t

was cer tainly not just a simple notation that Appellant wa s i n v o l v ed in a fig ht. There fore , we conclude that L .C.’s written st atement was testimonial. See Grant v. Stat e , 218 S. W

. 3 d 2 2 5 , 2 3 2 (Tex. App. – Houston [14t h Dist

. ] 2007, pet. ref ’d) (finding written statements made to a school principal for purposes of deter mining whether a person violated schools rules by enga ging in prohibited behavior was testimonial). Nev e rtheless, the State argues that the Confrontation Clause was not implicated beca use L .C.

was not absent from trial. Although it is true that L .C. did appea r in court and that she was questioned by defe nse counsel, she did not reme mber any thing that happene d that day , nor could she

reme mber what she told the school secur ity office r about the assault. This Court previously found that a witness was absent for purposes of i mplicating the Confrontation Clause analy sis when she testified to a complete memory loss reg arding her previous statements, despite appea ring at trial and being questio n ed by defe nse counsel. See W oodall v. State , No. 08-07-00015- CR, 2009 WL 2872837, at *5 (Tex. App. – El Paso Sept. 9, 2009, pet. g rant ed ) (o p . , not desig nated for publication). Howeve r, the Court o f C ri minal Appea ls later reve rsed that decision, holding that memory loss does not rende r a witness “abse nt” for Confrontation Clause purposes post- Crawf ord

so long as the witness was prese nt and testifying at the time the prior statement is admitted. See W oodall v. State , No. PD-1379-09, — S.W.3d —, 2011 WL 743844, at *8 (Tex. Crim. App. Mar. 2, 2011) (not y et repor

ted). Acc ording ly , althoug h L .C. could not reme mber the details of her prior written statement, beca

use she was prese nt and testifying at the time her statement was admitted, she

was not “abse nt” for Confrontation Clause purposes. Id

. There fore , despite the testimonial nature of her statement, we hold that the Confrontation Clause was not implic at ed i n t h i s case . SeeCrawf

ord , 514 U.S. at 50-52, 59; W oodall , 2011 WL 743844, at *6 (ca ses stating that to implicate the Confrontation Clause, an out-of-c ourt statement must meet two require ments: (1) that i t was made by a witness abse nt from trial; and (2) that it was te stimoni al in nature ). In short, we find that the trial court did not abus e i t s d iscretion by overr uling Appellant’s Confrontation Clause objection to the admission of L .C.’s written statement. As Appellant does not contend that the statement was inadmissible under Rule 804(a) (3) but for his Confrontation Clause complaint, we will not addre ss that issue. Appellant’s sole issue is over ruled. CONCLUSION Havingoverr

uled Appellant’ s sole issue, we a ffirm the tria l court’s judg ment.

GUADA LUPE RI VERA, J ustice May 4, 2011 Be fore Chew, C.J ., McClure, a nd Rivera, JJ

.