Samuel Arrenado A/K/A Samuel Arren Ferralez v. State

NUMBER 13-12-00651-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

SAMUEL ARRENADO FERRALEZ

A/K/A SAMUEL ARREN FERRALEZ, Appellant, v.

THE STATE OF TEXAS, Appellee.

On appeal from the 371st District Court of Tarrant County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Perkes Memorandum Opinion by Justice Perkes

Appellant Samuel Arrenado Ferralez, a/k/a Samuel Arren Ferralez, appeals his conviction for murder, a first-degree felony. See TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). A jury found appellant guilty and assessed punishment at ninety-nine years’ confinement in the Texas Department of Criminal Justice, Institutional Division. By one issue, appellant argues the admission and publication of a video recording of homicide detectives interviewing him violated his federal and state constitutional rights to confront witnesses because the detectives referenced third-party statements during the interview. We affirm.

I. BACKGROUND1

Stephenie Caddy-Aqqad was killed in her garage. She was shot once in the back. Appellant, Stephenie’s boyfriend, was at the scene and called 911. When police officers arrived, appellant told them that a young African-American man had come to the house, shot Stephenie, and then fled. Investigating officers found a spent .38 caliber cartridge casing in the backyard of the house and a .38 revolver in the field behind the backyard fence.2

From the .38 pistol’s serial number, investigators learned that the firearm had been purchased by Stephenie’s sister. She testified at trial that she gave it to Stephenie.3 A firearms and toolmarks examiner analyzed the pistol and testified that the .38 revolver fired the bullet from the recovered cartridge casing. DNA testing on the pistol’s handle revealed that appellant could not be excluded as a contributor to one of the DNA profiles found on the handle. Officers tested appellant’s hands for gunshot residue, and there were two particles “characteristic” of gunshot residue and several “particles commonly associated with” gunshot residue on his hands.4 According to the forensic pathologist who investigated the body, Stephenie’s wound was consistent with an injury caused by a .38 bullet. He testified that Stephenie’s death was homicide.

II. RIGHT TO CONFRONTATION

By his sole issue, appellant contends the trial court’s admission and publication of a video recording of his interview with homicide detectives violated his confrontation rights under the Sixth Amendment to the United States Constitution and Article 1 Section of the Texas Constitution because the detectives referenced third-party statements.5 We review de novo the trial court’s ruling regarding the admission and publication of the recorded interview. Cook v. State, 199 S.W.3d 495, 497 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Lilly v. Virginia, 527 U.S. 116, 137 (1999)); Marc v. State, 166 S.W.3d 767, 778 (Tex. App.—Fort Worth 2005, pet. ref’d). A. Applicable Law

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]” U.S. CONST. amend. VI. This protection prohibits the admission of testimonial statements unless the declarant is unavailable to testify and the accused had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 59, 68 (2004); Langham v. State, 305 S.W.3d 568, 575–76 (Tex. Crim. App. 2010). The court of criminal appeals has explained: [T]he Supreme Court has observed that an out-of-court statement, even one that falls within its definition of “testimonial” statements, is not objectionable under the Confrontation Clause to the extent it is offered for some evidentiary purpose other than the truth of the matter asserted.

When the relevance of the out-of-court statement derives solely from the fact that it was made, and not from the content of the assertion it contains, there is no constitutional imperative that the accused be permitted to confront the declarant. In this context, the one who bears “witness against” the accused is not the out-of-court declarant but the one who testifies the statement was made, and it satisfies the Confrontation Clause that the accused is able to confront and cross-examine him.

Langham, 305 S.W.3d at 576–77 (citing Crawford, 541 U.S. at 59; Tennessee v. Street, 471 U.S. 409, 414 (1985)).

B. Discussion

During the video-recorded interview, the detectives used third-party statements to challenge appellant’s version of the events. For example, early in the interview, appellant informed the detectives that his relationship with Stephenie had been “so, so, so wonderful. So wonderful.” On a scale of one to ten, the relationship was “Ten Plus Plus Plus Plus Plus.” Appellant also claimed he did not own a gun. The detectives challenged appellant’s assertions, asking him why Stephenie’s mother, brother, and friend said the relationship was not good, why Stephenie’s mother said he had a gun, and why his oldest son told police officers that he saw appellant throwing things over the backyard fence.6 In this regard, one of the interviewing detectives, Detective Jeremy Todd Rhoden, testified at appellant’s trial and was subject to cross-examination.

The third-party statements that the detectives used to question appellant in his interview were not admitted at trial to establish the truth of the matters asserted. Their relevance did not turn on their accuracy but on the fact that they were used to evoke certain responses from appellant that led the detectives to believe he was being dishonest. In fact, in the State’s opening argument, the State informed the jury that the importance of the interview was that it showed appellant’s evolving alibi and dishonesty.

The relevance of the out-of-court statements derived solely from appellant’s responses to them and not from their content. See Langham, 305 S.W.3d at 577; see also Humphrey v. State, No. 01-08-00820-CR, 2012 WL 4739925, at *2, 4 (Tex. App.—Houston [1st Dist.] Oct. 4, 2012, no pet.) (mem. op., not designated for publication) (holding admission of video containing police interrogation of the appellant, which included the officers challenging the appellant’s version of events with third-party statements, did not violate the appellant’s Confrontation Clause rights because the statements were not offered to prove the truth of the matter asserted). Because Detective Rhoden was subject to cross-examination at trial, appellant was not deprived of his Sixth Amendment right to confrontation. See Langham, 305 S.W.3d at 577; see also Humphrey, 2012 WL 4739925, at *4. We overrule appellant’s issue.

III. CONCLUSION

We affirm the trial court’s judgment.

GREGORY T. PERKES Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

13th day of February, 2013.