PD-1053-20 02/03/2021
1. “State’s Exhibit 177 was Admissible Under Article 37.07, § 3(a)(1) Because it was ‘Relevant to Sentencing’ and the Fourteenth Court of Appeals Erred in not Being Guided by the Language of the Statute.”
2. “If State’s Exhibit 177 was Admitted in Error, the Fourteenth Court of Appeals Erred in Finding Appellant was Harmed When it Only Added Evidence that His 2002 Domestic Violence Conviction Involved Him Kicking and Biting His Wife.”
Macedo was convicted of murdering his wife by shooting her at point-blank range. At the punishment phase, over Macedo’s hearsay objection, the judge admitted State’s Exhibit 177, which contained a police report from a prior incident in which Macedo was arrested for beating and biting his wife.
Before the court of appeals, Macedo argued that the admission was erroneous and harmful. The State asserted that hearsay evidence, not ordinarily admissible at the guilt phase under the evidentiary rules, is admissible at punishment under Tex. Code Crim. Proc. art. 37.07 § 3(a)(1) when it is “relevant to sentencing.” According to the State, in 1993, when the Legislature deleted the “as permitted by the Rules of Evidence” proviso from Article 37.07 § 3(a)(1), it intended to allow the consideration of inadmissible hearsay at punishment when presented in a prior criminal record or when related to an extraneous crime or bad act. The lower court determined, however, that Court of Criminal Appeals’ precedent has held otherwise. Since the 1993 amendment, the Court of Criminal Appeals has implicitly held that the evidentiary rules cannot be disregarded in non-capital cases. Ellison v. State, 201 S.W.3d 714, 721-22 (Tex. Crim. App. 2006); Smith v. State, 227 S.W.3d 753, 759-60 (Tex. Crim. App. 2007). Further, other courts of appeals have followed this rule and required a hearsay exception or a witness to establish admissibility. Next, despite overwhelming evidence of Macedo’s guilt, the court of appeals held that the admission was harmful because it was emphasized in the State’s closing argument.
The State reiterates its reliance on the 1993 change to Article 37.07 § 3(a)(1) and contends that the Court of Criminal Appeals did not squarely address the issue in Ellison or Smith. Other intermediate courts also have not squarely addressed the issue. Additionally, the State contends that, even if the admission was improper, Macedo’s substantial rights were not affected. “[T]he overwhelming evidence showed he shot her at ‘point-blank range’ and tried to claim it was a suicide, he hit her ‘all the time,’ he once threatened to wreck the car and kill everyone in it, including his son, and he once threatened to shoot his wife before in front of his son.” The jury also heard specific evidence that the prior incident other than the police report. Macedo’s “father-in-law testified appellant was arrested for beating her when they lived in California,” which was also evidenced by a judgment of conviction.
