### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00266- CR

Clif ton Sivad Montague, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 264 TH JUDICI AL DISTRICT NO. 705 35, H ONO RAB LE MARTH A J. TRUDO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A j u r y f o u n d a p p e l l a n t C l i f t o n S iv a d M o n ta g

u e g u il ty o f mu

r d e r , f o u n d a n e nh a n c e m e n t para g raph to be true, and assessed punishment at life imprisonment. See Tex. Penal Code § 19.02. I n his first point of err or, Montag ue co n t ends that the trial court abused its discretion when it admitted ballistics evidence from an e x pert witness without first g ranting Montag ue his reque sted hear ing on the admissibili ty of such evidenc e. I n his second point of err or, Montag ue contends that the trial court abused its discr etion by allowing a witness to testify elec tronically over Montag ue’s objection. We will affirm the tria l court’s judg ment of convic tion.

BACK GR OUND 1 L ater ranc e Deshua

n Newsom was found shot to death on the floor of Montag ue’s

a p a r tm e n t in K il le e n . M o n ta g

u e ’ s r o o mm a

te a n d s o me o f h is n e ig

h b o r s h e a r d th e g u n s h o ts

. M o me n ts

The fa cts rec ited here in are taken f rom the testimony

and exhibits prese nted at trial. 1afte r the shooting, Montag ue approa ched Trina Ware and her friend, who lived near by

. Montag ue t o l d Ware that he had shot someone and handed her a g un, which Ware threw over a fe n ce . Montag ue later

admitted to Tonika Wil lis that he had shot Newsom. Police rec overe d bullets and spent shell casing s from the apar tment and interviewe d witnesses. Montag ue was eventua lly arr ested and char g ed with murder. He was co nvicted and sentenc ed, and this appe al followed.

DISCUSSIO N Expert testim ony

At trial, the S tate called C alvin Story , a forensic firear ms examiner with the Tex as Depa rtment of Public Safety Crime L ab. Outside the prese nce of the jury , the t ri al co u rt and the attorney s addre ssed Montag ue’s previously filed motion to suppress ballistics evidenc e and whether Montag ue should be g rante d a hear ing to deter mine the admissibili ty of the State’s expert witness’s testimony

. I n his motion, Montag ue had challeng ed th e ad m i ssibili ty of the State’s ballistics evidenc e under Texas Rule of Evidence 702, which g overns the admission of expert testimony

. The State arg ued befor e the trial court that the cou rt h ad no obliga tion to conduct a hear ing on the admissibili ty of the ballistics evidenc e beca use such evidenc e “is well settled and admissible.” The trial court a llowed the expert witness to testify , explaining its decision as follows:

The Court is g oing— t his particula r examiner I believe has testified in this court befor e and the—on other occa sions, and I think that defe nse can proper ly challeng e whateve r t his witness has to say . And then I think it’s going to be up t o the j ury to fig ure out whether or not t h ey want to put whateve r weig ht and cre dibilit y to this witness.

2I n his first point of e rror , Montag ue contends that the trial court abused its discretion by admitting Story ’s testimony without first g ranting Montag ue his reque sted hear ing on the admissibili ty of the testimony

. We revie w t he admissi on of expert testimony for a n abuse of discretion. See Coble v. State , 330 S.W .3d 253, 272 (Tex. Crim. App. 2010).

I n a cr iminal case, upon the reque st of the def endant, the tr ial court must conduct a “g ateke eping ” hear ing outside the prese nce of the jury “to deter mine whether scientific evidenc e is sufficie ntly reliable and rele vant to help the jury in rea ching an acc urate result.” Id. at 273 (footnotes omitted); see Tex. R. Evid. 705(b) (“B efor e an expert states an opinion or discloses the underly ing fac ts or data, an adver se party in a . . . criminal case must

. . . b e p er m itted to examine the expert about the underly ing fac ts or data. This e x amination must take place outside the jury ’s hear ing.” ). “B eca use Rule 705(b) is mandatory , a trial judge ’s denial of a t i m el y an d proper motion for such hear ing w ould constitute error .” Alba v. State , 905 S.W .2d 581, 588 (Tex. Crim. App. 1995).

We will assume, without deciding , that Montag ue made a timely and proper reque st for a hear ing on the admissibili ty of Story ’s testimony and t h at t h e t ri al court err ed by admitting S t o ry ’s testimony without conducting the reque sted hear ing. We will there fore consider whether this err or is reve rsible. See id. (“I n such a case , a revie wing court would then be require d to decide whether the trial judge ’s err or was so harmful as to require a reve rsal.”)

. Be cause such err or is not constitution al , we will reve rse the trial court’s judgme nt on this basis only if the err or aff ecte d Montag ue’s substantial rig hts. See Tex. R. App. P. 44.2(b); Trevino v. State , No. 04-12-00840- CR, 2014 WL 3518098, at *2 (Tex. App.—San Antonio J uly 16, 2014, no pet.) (mem. op., not desig nated fo r publication) (“B eca

use the err or is not constitutional, we will only reve rse if i t af fe ct ed

3Trevino’ s substantial rig hts; otherwise, the err or must be d i s re gar d ed .”); see also Clark v. State ,

No

. 1 0 -1 5 -00022-CR, 2015 WL 5949338, at *4 (Tex. App.—Waco Oct. 8, 2015, pet. filed) (mem. op., not desig nated for publication) (stating err or in deny ing Rule 705(b) hear ing is revie wed under Rule 44.2(b)) ; Meie r v. State , No. 05-08-00486-C R , 2009 WL 765490, at *8 (Tex. App.—Dallas Mar. 25, 2009, no pet.) (not desig nated for publication) (same) ; Ghahremani v. State , No. 14-06-00729-CR, 2007 WL 3146723, at *8 (Tex. App.—Houston [14t h Dist.] Oct. 30, 2007, pet. ref ’d) (mem. op., not desig nated for publication) (same)

. “A substantial rig ht is aff ecte d when
t h e er ror had a substantial and injurious eff ect or influence in deter

mining the jury ’s ver d i ct

. ” Schmutz v. State , 440 S.W .3d 29, 39 (Tex. Crim. App. 2014). “Substantial rig hts are not aff ecte d b y t h e er roneous admission of evidenc e if, afte r examining the rec ord as a whole, we have fa i r

assura nce that the err or did not influence the jury , or had but slight eff ect.” Campbell v. State , 382 S.W .3d 545, 553 (Tex. App.—Austin 2012, no pet.).

We will conclude that the trial court’s err o r d i d n ot aff ect Montag ue’s substantial rig hts if we determine that the S tate’s ex pert testim ony was in fac t re l i ab l e. See Jack son v. Stat e , 17 S.W .3d 664, 672 (Tex. Crim. App. 2000) (“[W] e h o l d t h at in this case the err or was harmless beca use the State’s D NA evide nce w as i n fac t reliable .”); Johnson v. State , No. 11-08-00243- CR, 2010 WL 2803015, at *2 (Tex. App.—Eastland J uly 15, 2010, pet. ref ’d) (mem. op., not desig nated for publication) (“F ollowing Jack son , we hold that any err or in f ailing to conduct a more thoroug h Kelly–Daubert hear ing outside the jury ’s prese nce wa s h ar m l es s beca use the HGN evidenc e was shown to be re liable and admissible.”). Her e, Story testified that seven bullets r ecove red from the crime scene wer e all fired from the same g un. Story also testified that eleve n casing s rec overe d from

4t h e scene wer e all fired from the same g un. Story testified that no g un was submitt ed t o h i m fo r

analy sis and that, without the wea pon, he was unab l e t o d et ermine whether the bullets wer e fired from the sa me g un as the c asing s.

Story also explained to the jury how marking s are made on bullets and c asing s and the techniques and equipment he used in perf orming his analy sis. Acc ording to Story ’s testimony , the s cienc e behind his methods orig inated in the 1920s and ha s been use d in courts s ince then. I n addit ion, Story testified t hat he has worked i n his field for about 40 y ear s and that he has testified around 500 times as a

n expert witness on firea

rms and tool-mark a

naly sis. We conclude that Story ’s testimony was sufficie ntly re l i able. I t was undisputed that Story had testified hundreds of times conce rning b al l i stics evidenc e. See Ramey v. State , AP-75,678, 2009 WL 335276, at *8 (Tex. Crim. App. Fe b. 11, 2009) (not desig nated for publication) (noting , in reje cting appellant’ s challeng e to expert testimony , that expert had testified as ballistics expert many times). Moreove r, expert ballistics testimony has long been allowed by courts. See id. at 9 (“ We have r ecog nized that the underly ing theory of t ool-mark identification could be reliable for identify ing fired bullets from individual firea rms.”); Mays v. State , 563 S.W .2d 260, 263 (Tex. Crim. App. 1978) (noting that court of criminal appea ls has long allowed expert ball istics testimony ). Story car efully ex plained the theory and techniques of his field of expertise and was subject to cross- examination by Montag ue’s c ounsel. Moreove r, beca

use the g un used in the crime was not rec overe d, Story did not testify that the ballistics evidenc e he examine d related to Montag ue. Rather, he mere ly conclude d that the bullets and casing s orig inated from one g un, in eff ect neg ating any theory that more than one

5wea

pon was used. Be cause Story ’s testimony did no t implicate Montag ue, it could not have had “a substantial a

nd injurious e ffe ct or influence in de termining the jury ’s ver dict” and the ref ore did not affe ct Montag ue’s substantial rig hts. See Sc hmutz , 440 S.W .3d at 39.

Be ca use the underly ing theory of tool-mark identification is g ener ally reliable an d beca use Story ’s testimony did not implicate Montag ue in the murder, we conclude that any err or the trial court may have committed in admitting Story ’s testimony without a prior hear ing was harmless. Acc ording ly , we ove rrule Monta g ue’s f irst point of error

.
Electronic testim ony

I n his second point of err or, Montag ue contends th at the trial court abused its discretion by

allowing a preg nant witness to te stify elec tronically over Montag ue’s objection. See Gree n v. State , 934 S.W .2d 92, 101–02 (Tex. Crim. App. 1996) (“A s an appellate court we revie w the trial cour

t’s decision to admit or exclude evidenc e under an abuse of discre tion standard.”)

. At a pre- trial hear ing, the State informed th e t ri al court that one of the State’s witnesses, Trina Ware, was preg nant and living in New York. Acc ording to the State, Ware’s doctor had ins tructe d h er n o t t o trave l. The S tate then proposed that Ware testify remotely by elec tronic

means that the State char acte rized as “a g lorified Sky pe.” Montag ue opposed t h i s arr ang ement and filed a

motion to s uppress Ware ’s testimony on Confrontation Clause g rounds. During the pre- trial hear ing, Montag ue informed his attorney th at h e d i d not want to wait in jail for six months until Ware had h er b ab y an d wa s able to trave l ag ain. Montag ue’s attorney then made the following statement to the cour t:

6I ad d re s s ed to my client that if y ou g rant our suppression, he’s g ot to wait

six months to get his trial? And he very emphatica lly

—he wa nts his trial now. So in eff ect my client is waiving my eff orts to suppress that and we are now acc eptable to the elec tronic pre sentation if that’s all that’s available. I t appea rs it is. End of story

. Montag ue’s attorney went on to discuss the scheduling of another witness’s testimony , ref err ing to that issue as “a

lot more important” than the dispute ove r Ware’ s remote testimony

. L ater in the hear ing, the trial court stated, “Now, as far as the technolog y for [W are ], defe nse have indicated they don’t have any problem then with pr ocee ding with tha t.” Montag ue’s attorney did not contra dict that asser tion. Howeve r, later in the hear ing, Montag ue’s attorney asked the trial court to rule on his motion to suppress Ware’s testimony

. The trial court asked, “I thought y ou told me that y ou wer e g oing to abandon y our motion to suppress that and that y ou all, y our client wanted the trial date, there fore y ou wer e willing to do that? ” Montag ue’s attorney responde d, “Tha t is corre ct.” At that point, Montag ue indicate d that he was confuse d by this discussion, s o the trial court explained to Montag ue that his tria l w ould be postponed for sever al months if W are was not allowed to testify remotely

. The court stated, “Your choice is wait until she has a baby , or forc e the trial to come. Your lawy er has indicated y ou wanted to have y our t rial. You’re rea dy for it. You don’t want to sit in jail and wait for five months.” Neither Montag ue nor his a ttorney contra dicted this statement, and the trial c ourt went on to explain that the case would proce ed to trial.

At trial, Montag ue rene wed his objection to Ware’s elec tronic testimony

. Acc ording to Montag ue’s counsel, a lette r f r om Ware’s phy sician indicated that the conce rn over Ware trave ling

was a result of Ware’s mental health history

. Montag ue s t at ed that the defe nse had previously

7believed that the phy sician’s advice n o t t o trave l arose from Ware’s “phy sical” condition, not

“the spa ce be tween he r ears.” Montag ue also mentioned gene ral concer ns about the inade quacie s of remote testimony

. The trial court then stated that it was the court’s understanding that Montag ue had previously indicated “that y ou all would be willing to let [ Ware] testify telephonica lly or elec tronically beca

use y our client and y ou had asked initially for a continuance and y o u r cl ient

was opposed to that.” The court further explained to Montagu e’ s counsel, “y ou indicated to the Court that y ou would ag ree to proce ed with her testimony being elec tron i c and upon that proof [of W are ’s pre g nancy ].”

Ware then testified re motely outside the presence of t he jury

. Ware ex plained that she was preg nant, that she suffe red from sever al mental health issues, and th at h er p hy sician had advised her not to trave l more than 70 miles (the distance require d for Ware to obtain medical car e). Acc ording to Ware, her doctor was conce rned that Ware could g o into pre- term labor if she trave led far ther. At the conclusion of Ware’s testimony , the trial court decide d to allow Ware to testify elec tronically

befor e the jury . The c ourt explained its decision as follows:

I ’m g oing to find that this witness is medically unable to trave l, based on her testimony and the doc tor’s statement a s well. And reg arding the fac t that she’s just been hospitaliz ed a wee k or so ag o, has m ed ical issues and with the worrie s about her being able to safe ly deliver, I t h i n k that it is not a good idea for her t o trave l in acc ordanc e wit h h er t es t i mony and the doctor’s te stimony . So I ’ll permit her to testify elec tronically

. Appea ring elec tronically , Ware then testified in fr o nt of the jury that on the night of the murder Montag ue told her tha t he had shot someone a nd had hande d her a

g un.

8The State contends that, beca use Montag ue ag ree d at the pre- trial hear ing to g o to trial and allow Ware to testify elec tronically , Montag ue invited any err or the trial court may have committed in allowing Ware to testify and is estopped from arg uing on appea l that his Confrontation Clause rig hts wer e violated. Assuming without deciding that Montag ue is not estopped from raising his Confr ontation Clause objection and has prese rved it for appellate revie w, we conclude that the trial court did not abuse its discretion by allowing Ware to testify

remotely

. The Six th Am endment’s Confrontation Clause provides that “[i] n all criminal prosec utions, the acc used shall enjoy the rig ht

. . . to be confr onted with the witnesses ag ainst him.” U.S. Const. amend. VI

. “The principal conce rn of the Con fr o n t at i o n Clause is to ensure the reliability of th e ev i d en ce ag ainst a criminal defe ndant by subjecting it to rig orous testing in the contex t of an adver sary proce eding befor e t h e t rier of fac t.” Jessop v. State , 368 S.W .3d 653, 679–80 (Tex. App.—Austin 2012, no pet.) (c iting Maryland v. Craig , 497 U.S. 836, 845 (1990))

. H o w e v e r , th e r ig

h t to c o n f r o n ta ti o n is n o t a

b s o lu te

. S e e Cr a ig , 4 9 7 U

. S. a

t 8 4 8 ; H o r n v . Q u a r te r

m a n , 508 F.3d 306, 317 (5th Cir. 2007) (“[G]iven the trial court ’s ef fo rt s t o confirm Birk’ s illness and i n ab i l i t y to trave l and the car e with which the other aspec ts of Horn’s confr ontation rig hts we re prese rved, we cannot say that the decision to permit Birk to testify via two-wa y closed-c ircuit television constituted an u n re as o n ab le application of established fede ral law.”) ; United States v. Gi g ante , 166 F.3d 75, 81–82 (2d Cir. 1999) (stating that “two-w ay closed-c ircuit televis i o n testimony does not nece ssaril y v i o l at e t h e Six th Amendment” and holding that trial court did not abuse its discretion in allowing witness to testify beca use witness’s fa t al i l l n es s and participa tion in witness protection prog ram “ satisfy the exceptional circ umstances r equire ment”).

9Texas courts have allowed witnesses to tes t i fy elec tronically when the witness

was seriously i l l , a ch i l d , or on active milit ary duty in another country

. See Gonzales v. State , 818 S.W .2d 756, 764 (Tex. Crim. App. 1991) (holding trial court did not deny appellant his constitutional rig hts by allowing child witness to testify by two-wa y closed-c ircuit sy stem); Rivera v. Stat e , 381 S.W .3d 710, 713 (Tex. App.—Be aumont 2012, pet. ref’d) (“We conclude t hat under the circ umstances, the pref ere nce for having witnesses testify in the courtroom must g ive way to the prac tical co nsiderations involving Tay lor’s milit ary obliga tion that made his phy sical prese nce impractica l.”); Paul v. State , 419 S.W .3d 446, 459 (Tex. App.—Ty ler 2012, pe t. ref’ d) (“ J ordan’ s serious health situation was an exceptional circ umstance that war rante d permitting her testimony by

a computer video confe renc ing sy stem.”); Steve ns v. State , 234 S.W .3d 748, 782 (Tex. App.—For t Worth 2007, no pet.) (“Ward’ s tenuous health situation—documented by letters from his trea ting

car diologist—was an exceptional circ umstance that war rante d permitting his testimony by two-wa y closed circ uit television.”). At least one court has held that allowing a preg nant witness with a risk of miscarr iag e to testify by means of a two-wa y confe renc ing sy stem did not violate the defe ndant’s Six th Amendment rig hts. See Aceve d o v. S tate , No. 05-08-00839- CR, 2009 WL 3353625, at *8 (Tex. App.—Dallas Oc t. 20, 2009, pet. ref ’d) ( not desig nated f

or publication). The key inquiry in these case s is whether the method of elec tronic testimony used by th e St a te p r e s e r v e s th e “ s a lu

ta r y e f f e c ts o f f a c e - to

- f a c e c o n f r o n ta ti o n ” r e le v a

n t to a Si xth A me n d

me n t analy sis. See Steve ns , 234 S.W .3d at 782. These salutary eff ects include “(1) the g iving of testimony under oath, (2) the opportuni t y for cross-e x amination, (3) the ability of the fac t-finder to observe demea nor evidenc e, and (4) the reduc ed risk that a witness will wrong fully implicate an innocent

10defe ndant when testify ing in his prese nce.” Id. (citing Craig , 497 U.S. at 845–46); see Gonzales ,

818 S.W .2d at 764 (apply ing “ Craig criter ia” and concluding that witness “testified under oath, was subject to extensive cross-e x amination, and wa s observe d by the judg e, the jury

and appe llant”). Her e, Ware ’s testimony

prese rved e ach of these eff ects. Ware testified under oa th, she was cross-e x amined, the jury was able to observe her demea no r, an d t h e defe ndant was able to observe Ware throug hout her testimony

. We conclude that Ware’s at-risk preg nancy was an exceptional circ umstance that justified he r testify ing remotely

. Acc ording ly , we hold tha t the trial court did not abuse its discretion by allowing Ware to testify elec tronically , and we over ru l e Montag ue’s se cond point of er ror.

CONCLUSION Having overr

uled eac h o f Montag ue’s points of err or, we aff irm the judgme nt of convic tion.

__________________________________________ Scott K. Field, Just ice Be fore J ustices Pury ear , Pemberton, and F ield Affir med Filed: January

6, 2016 Do Not Publish

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