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Click here for the full text of this decision FACTS:Jeffrey Dailey checked into the Western Inn Motel in May 2002 to study for his final exams at the University of Houston Law School. Daily allowed an unknown female to enter his room to make a telephone called. The woman remained after she made the call, and soon, five to seven people burst into Dailey’s room. The people beat Dailey up, stole his car, ring, watch wallet and money from his bank account. Dailey thought that one of them had smoked crack during the robbery. Dailey also claimed that one of the assailants, Herbert E. Davis, held a knife to Dailey’s throat after everyone else had left. Davis was allegedly masturbating and wearing a condom. When Davis fell asleep, Dailey ran to the hotel lobby to call the police. A responding officer round Davis asleep in Dailey’s room with a knife in his hand. The officer did not find a condom or a crack pipe. Davis claimed he had passed out in the room, because he had not taken one of his insulin shots for the day. He said that before he fell asleep he found Dailey lying naked and flat on his back in the motel room. Davis allegedly told Dailey that he would stay with him while someone else went to call the police, but that was when Davis fell asleep. Davis was charged with and convicted of aggravated robbery. HOLDING:Affirmed. In an en banc opinion, the court reviews the legal sufficiency of the evidence. The court first rejects Davis’ claim that Dailey is not credible because the physical evidence is incompatible with his testimony. The court notes, however, that though the responding police officer admitted to not finding a crack pipe or a condom in the room, he also admitted that he did not conduct an extensive search of the room. The court next considers Davis’ argument that the trial court abused its discretion by refusing to admit into evidence the pleading Dailey has filed in a civil suit against the Western Inn. Davis wanted to cross-examine Dailey about any inconsistencies between his trial testimony and his pleadings. Davis argues on appeal that the pleadings are not inadmissible hearsay but are instead an exemption to hearsay under Texas Rule of Evidence 801(e)(2) as an admission by a party opponent. The court acknowledges that a prior panel opinion of this court – Willover v. State, 38 S.W.3d 672 (Tex.App. – Houston [1st Dist.] 2000), rev’d on other grounds, 70 S.W.3d 841 (Tex.Crim.App. 2002) – held that statements of a complainant were admissions by a “party opponent” in a criminal case and, as such, were not hearsay. “We now conclude that the complainant in a criminal prosecution is not a party within the meaning of rule 801(e)(2) and that we erred by holding to the contrary in Willover.” “A complaining witness is a crime victim who has no control over what charges the State brings against an accused, who the State charges, and when the State brings the charges. Perhaps more importantly, the complainant has no authority over the disposition of the offense, whether charges are dismissed or pursued, or what sentence a defendant ultimately receives. The State may bring charges against a defendant even though the complaining witness declines to pursue the charges, refuses to testify at trial, or testifies on behalf of the defendant at trial. Similarly, a complaining witness’s desire that charges against a defendant be dropped has no legal effect on the State’s charges against a defendant. It is axiomatic that a party has the authority to pursue or not to pursue charges, and to resolve the charges with or without a trial. The party here is the State of Texas, not the complaining witness.” Thus, Dailey’s civil pleadings were inadmissible hearsay. The court then rules that the trial court was correct in denying Davis’ motion for mistrial. The motion was based on the trial court’s admonition of Davis in front of the jury. The court points out that Davis objected to the admonition a day too late, which was not at the earliest possible opportunity. OPINION:Sherry Radack, C.J.; en banc. CONCURRENCE:Terry Jennings, J. “As I stated in my dissent from the denial of en banc review in Willover, this Court’s contrary holding was in serious error. . . . Accordingly, I further agree with the en banc court’s decision to overrule that holding.”

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