Jose Gutierrez v. the State of Texas

[[COURTLISTENER_SUBOPINION {"id":"10579752","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
Fourth Court of Appeals
                                            San Antonio, Texas
                                       MEMORANDUM OPINION

                                                No. 04-23-00088-CR

                                                 Jose GUTIERREZ,
                                                      Appellant

                                                            v.

                                               The STATE of Texas,
                                                     Appellee

                        From the 290th Judicial District Court, Bexar County, Texas
                                      Trial Court No. 2021CR7124
                                Honorable Jennifer Peña, Judge Presiding 1

Opinion by:         Irene Rios, Justice

Sitting:            Irene Rios, Justice
                    Beth Watkins, Justice
                    Liza A. Rodriguez, Justice

Delivered and Filed: September 4, 2024

REVERSED AND REMANDED

           Appellant Jose Gutierrez appeals the trial court’s order granting the State’s motion for

forfeiture by wrongdoing. The trial court determined Gutierrez forfeited his right to object to the

complainant witness’s testimony on confrontation and hearsay grounds because Gutierrez’s

wrongful conduct caused the witness’s unavailability at trial. On appeal, Gutierrez argues the trial

court erred when it determined: (1) the witness was unavailable for trial; and (2) Gutierrez’s




1
    The Honorable Maria Teresa Herr, Visiting Judge, signed the order that is the subject of this appeal.
                                                                                                    04-23-00088-CR


wrongful conduct caused the alleged unavailability. We reverse the trial court’s judgment of

conviction and remand the cause for further proceedings consistent with this opinion.

                                                 BACKGROUND

         Gutierrez was indicted for felony assault against a person with whom he had a dating

relationship, as a second offense. The indictment alleged habitual offender enhancements because

Gutierrez had two prior felony convictions for family-violence assault, but the State later

abandoned one of the enhancements. The assault arose from a domestic violence dispute between

Gutierrez and his girlfriend, Vanessa Ruiz. Initially, the State also charged Ruiz with misdemeanor

assault arising from the same domestic violence episode. Because there were pending charges

against Ruiz, the State’s victim advocate was prohibited from contacting Ruiz.

         At some point the State dismissed the charges against Ruiz. The victim advocate called

Ruiz on May 23, 2022 to inform her that she needed to appear the next day to testify in Gutierrez’s

trial. Ruiz told the victim advocate she was not coming to court, and the State filed a motion to

continue the trial that day. 2 The trial court granted the continuance. The victim advocate testified

she subsequently made a “few attempts to reach [Ruiz,]” and the State attempted to serve her with

a subpoena in July 2022.

         On July 25, 2022, the State filed its motion for forfeiture by wrongdoing asserting

Gutierrez’s wrongful conduct was causing Ruiz’s unavailability to testify at trial. Specifically, the

State alleged that Ruiz would not testify because Gutierrez made several jailhouse calls to Ruiz

requesting she not testify. The motion also alleges Gutierrez attempted to leverage an open case

with the Texas Department of Family and Protective Services regarding Gutierrez and Ruiz’s child


2
  The State cited a need for additional time to conduct discovery as the reason for the continuance. Specifically, the
State represented it was waiting on records from the Texas Department of Family and Protective Services and from
the first responders to the domestic violence dispute. The State’s motion did not mention Ruiz’s refusal to appear at
court.


                                                        -2-
                                                                                                      04-23-00088-CR


to persuade Ruiz not to testify. For example, in one of the jailhouse calls, Gutierrez told Ruiz that

he was told the only way she would be reunified with their daughter is through him. The State’s

motion requested the trial court render a pretrial order that Gutierrez’s wrongful conduct caused

Ruiz’s unavailability at a future trial date pursuant to forfeiture by wrongdoing. Consequently, the

State sought an order that Gutierrez has waived any right to make confrontation and hearsay

objections to Ruiz’s out-of-court statements made on the 911 phone call and the responding police

officer’s bodycam on the day of the domestic violence incident.

         On July 26, 2022, the victim advocate contacted Ruiz again via phone to inform her that

she needed to be in court for trial. Ruiz told the victim advocate she would not be there, and she

did not appear for trial. Although the record does not reflect the trial court granted a continuance,

it appears the trial was reset.

         On September 8, 2012, Ruiz filed an executed affidavit of non-prosecution with the State.

The affidavit stated Ruiz no longer wanted Gutierrez prosecuted and requested the State dismiss

the case. The affidavit further stated Ruiz does not wish to testify against Gutierrez but recognized

she could be compelled to appear if subpoenaed by the State. While Ruiz was filing the affidavit

at the District Attorney’s office, the State served her with a subpoena summoning her to appear

for trial on September 12, 2022. Ruiz did not appear at court on September 12, 2022, and the trial

did not commence.

         On October 17, 2022, the trial court held a two-day hearing on the State’s motion for

forfeiture by wrongdoing. 3 The victim advocate testified generally about her efforts to procure


3
  On October 13, 2022, prior to this hearing, another trial judge heard the motion. At the conclusion of that hearing,
the trial judge ordered the jailhouse calls were admissible. However, the State was not seeking a ruling on the
admissibility of the jailhouse calls. Rather, the State sought to introduce the out-of-court statements Ruiz made in the
911 call and to the responding officer on the day of the domestic violence dispute. The trial judge stated the
admissibility of the out-of-court statements would go contemporaneously with trial and did not make a ruling
regarding those statements. Therefore, Gutierrez and the State both requested to have the October 17, 2022 hearing
to get a ruling on the admissibility of those out-of-court statements.


                                                         -3-
                                                                                       04-23-00088-CR


Ruiz’s presence at trial but offered few specifics about the dates and details of the State’s attempts

to obtain Ruiz’s testimony. The trial court admitted the return of service for the subpoena and six

jailhouse calls between Gutierrez and Ruiz. The State did not seek a writ of attachment to compel

Ruiz’s appearance on September 12, 2022, and it did not make any further attempts to subpoena

Ruiz for court dates thereafter.

       On November 2, 2022, the trial court signed an order granting the State’s motion for

forfeiture by wrongdoing and issued findings of fact and conclusions of law. In its findings of fact

and conclusions of law, the trial court found “that the State has established that the complainant in

this case, Vanessa Ruiz, appears very unwilling to appear in court and testify against [Gutierrez.]”

The trial court also found Gutierrez repeatedly attempted to dissuade Ruiz from testifying at his

trial. The trial court concluded Gutierrez’s actions show that his goal was to persuade her not to

testify and that he had forfeited his right to object to Ruiz’s out-of-court statements on

confrontation and hearsay grounds as a result.

       Gutierrez and the State subsequently entered into a plea bargain whereby Gutierrez pled

nolo contendere in exchange for the State dismissing another family assault charge and capping

punishment at ten years’ confinement and a fine of $2,500. In the plea bargain, the State agreed

Gutierrez could appeal the trial court’s order granting the motion for forfeiture by wrongdoing.

The trial court accepted the plea agreement and assessed punishment at ten years’ confinement

and a $2,500 fine. The trial court’s certification of defendant’s right to appeal acknowledged this

was a plea-bargain case, but permitted Gutierrez to appeal the order granting forfeiture by

wrongdoing because it was a matter raised by written motion, filed, and ruled on before trial and

not withdrawn or waived. Gutierrez appeals the trial court’s order granting the State’s motion for

forfeiture by wrongdoing.




                                                 -4-
                                                                                     04-23-00088-CR


                                            DISCUSSION

       Gutierrez argues on appeal that the trial court erred when it granted the State’s motion for

forfeiture by wrongdoing, ruling Gutierrez would be precluded from raising confrontation and

hearsay objections to Ruiz’s out-of-court statements. Specifically, Gutierrez argues: (1) the trial

court erred when it determined Ruiz would be unavailable for trial; and (2) Ruiz’s alleged

unavailability was not caused by Gutierrez’s wrongful conduct. Because we conclude the trial

court’s unavailability determination was error, we need not address whether Gutierrez’s conduct

was wrongful or whether it caused Ruiz’s alleged unavailability. TEX. R. APP. P. 47.1 (“The court

of appeals must hand down a written opinion that is as brief as practicable but that addresses every

issue raised and necessary to final disposition of the appeal.”)

                                 FORFEITURE BY WRONGDOING

       Because forfeiture by wrongdoing concerns the admission of otherwise inadmissible

evidence, we review a trial court’s ruling regarding the admission of evidence pursuant to

forfeiture by wrongdoing for an abuse of discretion. Colone v. State,
573 S.W.3d 249
, 264–65

(Tex. Crim. App. 2019); Rivera v. State, No. 04-22-00391-CR,
2024 WL 3512153
, at *3 (Tex.

App.—San Antonio July 24, 2024, no pet. h.); Mohsin v. State,
691 S.W.3d 193
, 201 (Tex. App.—

Austin 2024, pet. ref’d); Bullock v. State, No. 01-22-00076-CR,
2023 WL 8939274
, at *3 (Tex.

App.—Houston [1st Dist.] Dec. 28, 2023, pet. ref’d); Shepherd v. State,
489 S.W.3d 559, 572
(Tex. App.—Texarkana 2016, pet. ref’d).

       A defendant in a criminal prosecution has a Sixth Amendment right to be confronted with

the witnesses against him. See Paredes v. State,
462 S.W.3d 510, 514
(Tex. Crim. App. 2015).

Under the Confrontation Clause, testimonial statements “are inadmissible at trial unless the witness

who made them either takes the stand to be cross-examined or is unavailable and the defendant




                                                -5-
                                                                                     04-23-00088-CR


had a prior opportunity to cross-examine the witness.”
Id.
(citing Crawford v. Washington,
541 U.S. 36, 54
(2004)).

       “The Confrontation Clause is, however, subject to certain ‘equitable exceptions,’ including

the rule of forfeiture by wrongdoing, a doctrine of estoppel that allows for the admission of out-

of-court statements over both confrontation and hearsay objections.” Mohsin, 691 S.W.3d at 200;

see also Colone, 573 S.W.3d at 264–65 (applying forfeiture by wrongdoing to both hearsay and

confrontation claims). “Under forfeiture by wrongdoing, the defendant is barred from asserting

his right of confrontation when he has wrongfully procured the unavailability of the witness.”

Shepherd,
489 S.W.3d at 573
; see also Bullock,
2023 WL 8939274
, at *2. “[T]he forfeiture rule

applies only when the defendant’s conduct is ‘designed to prevent the witness from testifying[]’”

because, “without such a rule, there would be ‘an intolerable incentive for defendants to bribe,

intimidate, or even kill witnesses against them.’” Brown v. State,
618 S.W.3d 352
, 355 (Tex. Crim.

App. 2021) (quoting Giles v. California,
554 U.S. 353, 359, 365
(2008)).

       In 2015, the legislature codified the common-law rule in article 38.49 of the Texas Code

of Criminal Procedure, which provides in relevant 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 depriving the trier of fact of
                   relevant evidence and testimony; and

               (2) forfeits the party’s right to object to the admissibility of evidence or
                   statements based on the unavailability of the witness as provided by this
                   article through forfeiture by wrongdoing.

       (b) Evidence and statements related to a party that has engaged or acquiesced in
           wrongdoing 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 showing of forfeiture by wrongdoing under this article . . . .




                                               -6-
                                                                                       04-23-00088-CR


TEX. CODE CRIM. PROC. ANN. art. 38.49(a)–(b); see also Bullock,
2023 WL 8939274
, at *3

(“Article 38.49 of the Texas Code of Criminal Procedure . . . states that a party who wrongfully

procures the unavailability of a witness forfeits the right to object to the admissibility of evidence

based on that unavailability.”).

       The trial court determines in a hearing outside the presence of the jury “whether forfeiture

by wrongdoing occurred by a preponderance of the evidence.” TEX. CODE CRIM. PROC. ANN. art.

38.49(c). When the State seeks to admit the out-of-court statements, it must prove that: (1) the

declarant-witness is unavailable; (2) the defendant engaged in wrongful conduct; (3) the wrongful

conduct procured the unavailability of the witness; and (2) the defendant intended to procure the

unavailability of the witness. Brown, 618 S.W.3d at 356; Mohsin, 691 S.W.3d at 200–01.

                                         UNAVAILABILITY

       As a fundamental part of our jurisprudence, the State bears the burden to prove alleged

criminal conduct beyond a reasonable doubt. See Baltimore v. State,
689 S.W.3d 331
, 340 (Tex.

Crim. App. 2024) (“The Fourteenth Amendment’s guarantee of due process of law prohibits a

criminal defendant from being convicted of an offense and denied his liberty except upon proof

sufficient to persuade a rational trier of fact beyond a reasonable doubt of every fact necessary to

constitute the offense.”); see also Proctor v. State,
767 S.W.2d 473, 474
(Tex. App.—Dallas 1989,

pet. ref’d) (“An equally fundamental principle of criminal due process provides that the State must

carry the burden of proof upon all essential elements of the offense, and that the State’s burden

upon those elements is proof beyond a reasonable doubt.”). It is the State’s burden to present

admissible evidence to prove the defendant’s guilt beyond a reasonable doubt. See Brown v. State,
122 S.W.3d 794, 797
(Tex. Crim. App. 2003) (“The advocates have the task of producing the

evidence, arguing its significance, and pointing out the logical inferences that flow from that

evidence.”).   When this evidence is presented as testimony, the defendant is afforded the


                                                 -7-
                                                                                        04-23-00088-CR


opportunity to cross-examine the State’s witness so that he may test the veracity of the witness’s

testimony and attack the witness’s credibility. See Coronado v. State,
351 S.W.3d 315, 323
(Tex.

Crim. App. 2011) (“[The Confrontation Clause] commands, not that evidence be reliable, but that

reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”

(quoting Crawford,
541 U.S. at 61
)); see also Koehler v. State,
679 S.W.2d 6, 9
(Tex. Crim.

App. 1984) (“It is now self-evident in these United States that one of the greatest constitutional

rights an accused has is the right to confront and cross-examine the State’s witnesses in a public

forum.” (citing Pointer v. Texas,
380 U.S. 400, 403
(1965))). While forfeiture by wrongdoing is

an equitable remedy afforded the State to overcome the defendant’s right to cross-examine

witnesses that testify against him, the State must first show that the witness is “unavailable” at

trial. See Brown, 618 S.W.3d at 356.

        “[A] witness is not ‘unavailable’ for purposes of the . . . confrontation requirement unless

the prosecutorial authorities have made a good-faith effort to obtain [the witness’s] presence at

trial.” Hardy v. Cross,
565 U.S. 65, 69
(2011) (quoting Barber v. Page,
390 U.S. 719
, 724–25

(1968)). While a reviewing court may always think of additional efforts the State could have

employed to secure the witness’s presence, “the great improbability that such efforts would have

resulted in locating the witness, and would have led to [the witness’s] production at trial,

neutralizes any intimation” that the State would be reasonably required to employ those efforts.

Hardy,
565 U.S. at 70
. Simply stated, “[t]he State is not required to engage in clearly futile

activities before a trial court can, in its discretion, determine that the State made good-faith efforts

to produce a witness at trial.” Ledbetter v. State,
49 S.W.3d 588, 594
(Tex. App.—Amarillo 2001,

pet. ref’d). However, “[s]ocial policy, public policy, [and] even grave practical difficulties of

obtaining the witness for trial do not trump the categorical requirement” under the Confrontation

Clause. Coronado,
351 S.W.3d at 323
.


                                                  -8-
                                                                                        04-23-00088-CR


       Here, the State failed to show that it made a good-faith effort to secure Ruiz’s presence at

trial. The State subpoenaed Ruiz for the September 12, 2022 trial setting. The victim advocate

testified that the State did not request the trial court issue a writ of attachment to procure Ruiz’s

attendance at trial after she failed to appear at the September 12 setting. While we recognize that

the State is not always required to request a writ of attachment when a witness fails to appear, it is

a “factor for the trial court to consider in determining whether the State made a good-faith effort

to obtain [the witness’s] presence at trial . . . .” See Ledbetter,
49 S.W.3d at 594
. Of course, it

would be clearly futile to seek a writ of attachment when the witness’s location is unknown to the

State or there is some impediment—such as death or the inability to locate the witness—that causes

the witness’s unavailability. See, e.g.,
id. at 594
(stating a writ of attachment would have been

clearly futile because the State did not know the witness planned to leave the county and did not

know where to locate the witness); Bullock,
2023 WL 8939274
, at *4 (holding forfeiture by

wrongdoing applied when witness was unavailable because she had been killed by the defendant).

But the State in this case knew Ruiz’s exact location, and the evidence it presented at the pretrial

hearing did not establish that its efforts to secure her presence at trial through a writ of attachment

would have been clearly futile, especially given Ruiz’s acknowledgment in her non-prosecution

affidavit that she could be compelled to appear for trial. See Hardy, 565 U.S. at 69–70 (“In Barber,

we held that a witness had not been unavailable for Confrontation Clause purposes because the

State, which could have brought the witness to court by seeking a writ of habeas corpus ad

testificandum, had ‘made absolutely no effort to obtain [his] presence . . . at trial apart from

determining that he was serving a sentence in a federal prison.” (quoting Barber,
390 U.S. at 723
)).

The victim advocate testified that she had contacted Ruiz several times by phone, the State had

successfully subpoenaed Ruiz, and the State knew her current address. After the September 12




                                                 -9-
                                                                                                      04-23-00088-CR


trial setting was reset, the victim advocate testified the State did not make any further efforts to

issue a subpoena for a future trial date.

         Regarding Ruiz’s availability, the trial court’s findings of fact and conclusions of law

merely state that the trial court finds Ruiz “appears very unwilling to appear in court and testify

against [Gutierrez].” At most, Ruiz was uncooperative at the point the trial court heard the motion

for forfeiture by wrongdoing. The State oftentimes must deal with uncooperative witnesses to

prove its case. While Ruiz may have been uncooperative, the victim advocate’s non-specific

testimony does not support a conclusion that Ruiz was trying to hide from the victim advocate or

that the State was unable to locate her. In fact, the victim advocate testified there was never “an

issue of getting a hold of her . . . [,] we’ve always had her phone number.” Under these facts, the

State knew how to locate Ruiz, knew where she lived, and could have issued a writ of attachment

to secure her presence. The State’s actions here fall short of a good faith effort to secure the

witness’s presence.

         There is also a critical distinction in this case from the caselaw we have reviewed: The trial

court in this case made a determination that a witness—whom the State could easily locate—was

unavailable at some future, unknown trial date. 4 On this record, the State cannot show that Ruiz


4
 In most cases we reviewed, the State sought to invoke forfeiture by wrongdoing during trial when it was conclusively
established that the witness did not appear. See Rivera,
2024 WL 3512153
, at *1 (stating the trial court held the
forfeiture hearing several days after trial commenced and the witness “did not appear at trial”); Brown, 618 S.W.3d at
354 (“[The witness] did not appear in court.”); Ledbetter,
49 S.W.3d at 591
(stating the trial court held the forfeiture
hearing after the witness did not appear at the courthouse on the date for which he was subpoenaed); see also Sanchez
v. State, No. 13-22-00512-CR,
2024 WL 377855
, at *1 (Tex. App.—Corpus Christi–Edinburg Feb. 1, 2024 pet. ref’d)
(mem. op., not designated for publication); Roman v. State, No. 01-22-00748-CR,
2023 WL 9007336
, at *10 (Tex.
App.—Houston [1st Dist.] Dec. 28, 2023, pet. ref’d) (mem. op., not designated for publication); Baxter v. State,
No. 02-22-00258-CR,
2023 WL 8268292
, at *16 (Tex. App.—Fort Worth Nov. 30, 2023, pet. ref’d) (mem. op., not
designated for publication); Barkley v. State, No. 02-22-00081-CR,
2023 WL 2534465
, at *2–4 (Tex. App.—Fort
Worth Mar. 16, 2023, pet. ref’d) (mem. op., not designated for publication); Garcia v. State, No. 03-11-00403-CR,
2012 WL 3795447
, at *1 (Tex. App.—Austin Aug. 29, 2012, pet. ref’d) (mem. op., not designated for publication).
In one case, the trial court made a pre-trial forfeiture ruling when the witness “disappeared and was never heard from
again.” See Powell v. State, No. 02-19-00206-CR,
2021 WL 5370163
, at *1, *72 (Tex. App.—Fort Worth Nov. 18,
2021, pet. ref’d) (mem. op., not designated for publication). In other cases where there was a preliminary ruling, the



                                                         - 10 -
                                                                                                      04-23-00088-CR


was unavailable to testify at trial—and therefore entitled to avail itself of forfeiture by

wrongdoing—because the State has yet to go to trial. The trial was reset several times until the

trial court heard the State’s forfeiture by wrongdoing motion on October 17, 2023. At the

conclusion of the hearing on October 18, 2023, the trial court ruled in the State’s favor, and

Gutierrez subsequently entered into a plea agreement.

         The State here did not seek to invoke forfeiture by wrongdoing in response to Ruiz’s

absence during trial, because trial never commenced. Rather, in a pretrial hearing, the State sought

a ruling on the admissibility of out-of-court statements at a future trial by arguing the witness’s

present failure to cooperate with the State makes her unavailable at that future trial. See Reyes v.

State,
845 S.W.2d 328, 331
, 331 n.1 (Tex. App.—El Paso 1992, no pet.) (acknowledging the

State’s duty to obtain attendance of a witness is not diminished simply because testimony was

previously recorded, especially when the out-of-court statements were likely more favorable than

live testimony if the witness were to testify).

         To be clear, the trial court is not always deprived of making a preliminary determination

of forfeiture by wrongdoing. In fact, article 38.49(c) contemplates the trial court may use pretrial

hearings to make such a determination “[i]f practicable.” See TEX. CODE CRIM. PROC. ANN.

art. 38.49(c). In cases where the witness is deceased, has left the jurisdictional reach of the court,

or the State’s efforts to procure the witness’s availability would truly be futile, a preliminary


trial court reserved final ruling for trial or reasserted its ruling at trial when the witness’s failure to appear was
conclusively established. See Mohsin, 691 S.W.3d at 199 (“[P]rior to the start of jury selection on the day for which
[the witness] had been subpoenaed, the court announced its conditional ruling: [the witness] 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.’”); Clifton v. State, No. 01-22-00641-CR,
2023 WL 5437181
, at *3 (Tex. App.—Houston [1st Dist.] Aug. 24,
2023, pet. ref’d) (mem. op., not designated for publication); Byrd v. State, No. 07-20-00234-CR,
2022 WL 2719060
,
at *4 (Tex. App.—Amarillo July 13, 2022, pet. ref’d) (mem. op., not designated for publication). We have not found
any cases where the State was able to locate the witness but the trial court made a preliminary ruling that the witness
was unavailable and the defendant subsequently entered a plea-bargain subject to an appeal of the trial court’s
forfeiture ruling. If the State is able to show the witness is truly unavailable at trial—rather than speculating on the
witness’s future conduct—it may very well be able to use Ruiz’s prior out-of-court statements pursuant to forfeiture
by wrongdoing. We express no opinion on the applicability of forfeiture by wrongdoing at a later date.


                                                         - 11 -
                                                                                       04-23-00088-CR


determination that the defendant has forfeited his right to assert hearsay and confrontation

objections to prior out-of-court statements may very well be “practicable.” See id.; see also Brown,

618 S.W.3d at 358 (“But this is not a case where a defendant murdered the victim—an offense that

would necessarily cause the victim to be absent from trial.”).

       In sum, there are two problems with the trial court’s conclusion that Ruiz was unavailable

to testify at trial. First, the trial court can only conclude Ruiz was unavailable if the State made a

good faith effort to secure Ruiz’s presence at trial. Here, the State failed to make a good faith

effort to secure Ruiz’s presence because it had means that were not clearly futile to compel her

appearance. Under these circumstances, Ruiz was an uncooperative witness. But the State knew

where she was and could have employed means to secure her presence at trial that would not have

been clearly futile. Because the State did not employ those means, it did not make a good faith

effort to secure her presence. Second, the trial court could not have made a determination that

Ruiz was unavailable for a trial that had not occurred, and was not scheduled, when the State knew

where to locate her and had means to compel her appearance. Because the trial court could not

have possibly known whether Ruiz would be unavailable for a trial that never commenced—or a

future trial date that was never set—its unavailability conclusion is outside the zone of reasonable

disagreement.

       Accordingly, the trial court abused its discretion when it made a preliminary determination

that Ruiz was unavailable to testify at an unknown, future trial date.

                                               HARM

       Error in admitting evidence in violation of the Confrontation Clause is constitutional error

and, therefore, subject to a harm analysis. Render v. State,
347 S.W.3d 905, 918
(Tex. App.—

Eastland 2011, pet. ref’d). Under Rule 44.2(a) of the Texas Rules of Appellate Procedure, we

must reverse a judgment of conviction unless we determine beyond a reasonable doubt that the


                                                - 12 -
                                                                                       04-23-00088-CR


error did not contribute to the conviction. TEX. R. APP. P. 44.2(a). The following factors are

relevant when determining specifically whether constitutional error under the Confrontation

Clause may be declared harmless beyond a reasonable doubt: “(1) how important was the out-of-

court statement to the State’s case; (2) whether the out-of-court statement was cumulative of other

evidence; (3) the presence or absence of evidence corroborating or contradicting the out-of-court

statement on material points; and (4) the overall strength of the prosecution’s case.” Scott v. State,
227 S.W.3d 670, 690
(Tex. Crim. App. 2007). “We consider the source and nature of the error,

the extent that it was emphasized by the State, its probable collateral implications, the weight a

juror would probably place on the error, and whether declaring it harmless would likely encourage

the State to repeat it with impunity.” Acevedo v. State,
255 S.W.3d 162, 173
(Tex. App.—San

Antonio 2008, pet. ref’d).

       Here, Gutierrez was convicted of assault against a person with whom he had a dating

relationship, as a second offense. Ruiz was the victim of the alleged assault. Ruiz had refused to

cooperate with the State since the victim advocate first contacted her in May 2022. Ruiz also

signed an affidavit of non-prosecution asking the State to dismiss the charges against Gutierrez.

Without Ruiz’s cooperation, and without her out-of-court statements, the State had little evidence

to support its prosecution. Further, Gutierrez’s plea to committing the offense came only after the

unfavorable ruling on the State’s motion for forfeiture by wrongdoing, and his plea was subject to

appellate review of the trial court’s forfeiture by wrongdoing ruling. Because Gutierrez’s plea

bargain was contingent on the correctness of the trial court’s ruling, we cannot say beyond a

reasonable doubt that the trial court’s error made no contribution to Gutierrez’s conviction.

Therefore, we cannot conclude the error was harmless.

       Accordingly, Gutierrez’s sole issue is sustained.




                                                - 13 -
                                                                                 04-23-00088-CR


                                            CONCLUSION

       We reverse the trial court’s judgment and remand the cause to the trial court for further

proceedings consistent with this opinion.


                                                  Irene Rios, Justice

DO NOT PUBLISH




                                               - 14 -