CROSSOVER: Forfeiture-by-Wrongdoing Jail Calls Can Unlock Absent Witness Statements in Violence-Adjacent Cases

Kadarrion Kanard Scott v. The State of Texas, 05-25-00601-CR, August 18, 2026.

On appeal from 265th Judicial District Court, Dallas County, Texas

Synopsis

The Dallas Court of Appeals held that a murder defendant was not entitled to a manslaughter lesser-included-offense instruction where the evidence showed he pointed a gun at one person’s face and fired after another person pushed his arm. That evidence did not create a rational basis to find only reckless conduct under Penal Code section 19.04 rather than intentional or knowing murder under section 19.02.

Relevance to Family Law

For Texas family-law litigators, the more important feature of this opinion is not the homicide charge analysis but the court’s treatment of witness unavailability and jail-call evidence under forfeiture-by-wrongdoing principles. In divorce, SAPCR, protective-order, enforcement, and property cases, similar evidentiary fights can arise when a witness who previously gave statements to police, a counselor, a forensic interviewer, or a third party later does not appear. This case is a useful reminder that communications showing efforts to affect a witness’s appearance or testimony can become the gateway for admitting otherwise problematic out-of-court statements, and that those communications may also survive Rule 403 objections if they directly explain witness absence and admissibility.

Case Summary

Fact Summary

The prosecution arose from a fatal shooting at a party in Garland. According to the trial evidence summarized by the court, Brandon Ewing was playing dice upstairs with Bowman standing nearby. Ewing testified that appellant took Ewing’s handgun from his hip, pointed it at Ewing’s face, and then fired when Bowman pushed appellant’s arm in an effort to protect Ewing. Shamaya Johnson gave a materially similar account: appellant moved closer to Ewing, pointed a gun at Ewing, Bowman tried to knock the gun hand away, and a shot was fired, killing Bowman.

Before trial, the State sought to admit statements from Ariel James, a witness who had been subpoenaed but failed to appear. Investigator Schingle testified that after service of the subpoena, James disappeared, and jail calls tied to appellant included directions that she not come to court, claim lack of memory if she did appear, stay hidden through the trial setting, and avoid staying with family members. Other recorded calls referenced keeping her concealed and arranging a hotel. Based on that evidence, the trial court admitted both James’s out-of-court statements and the jail calls.

On appeal, appellant challenged several rulings, but the lead issue for present purposes was whether the evidence required submission of a manslaughter lesser-included instruction. The Fifth Court said no.

Issues Decided

The court addressed and rejected the following issues:

• Whether the trial court erred by denying a requested lesser-included-offense instruction on manslaughter.
• Whether the trial court erred by admitting appellant’s jail calls over a Rule 403 objection.
• Whether the jail calls and the absent witness’s statements were admissible under forfeiture-by-wrongdoing principles.
• Whether the trial court erred in overruling an objection to a prosecutor’s statement during testimony.
• Whether the trial court erred in denying a mistrial after a witness referenced a prior arrest.
• Whether the trial court erred in overruling objections to allegedly improper jury argument.

Rules Applied

On the lesser-included issue, the court applied the familiar two-step framework from Texas criminal law governing lesser-included-offense instructions, including Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993), and Cavazos v. State, 382 S.W.3d 377 (Tex. Crim. App. 2012). Under that framework, even when an offense is legally lesser-included, the instruction is required only if there is some evidence in the record that would permit a rational jury to find that, if the defendant is guilty, he is guilty only of the lesser offense.

The substantive distinction turned on mental state. Murder under Texas Penal Code section 19.02 requires intentional or knowing conduct as charged, while manslaughter under section 19.04 requires recklessness. The key doctrinal point is that the record must contain affirmative evidence raising the lesser culpable mental state; speculation, alternative argument, or the mere fact that events unfolded quickly does not suffice.

The opinion also reflects application of forfeiture-by-wrongdoing doctrine and Rule 403 balancing. Although the blog headline’s crossover value is grounded in that portion of the opinion, the court treated the jail calls as probative evidence explaining why the witness did not appear and why her prior statements could be admitted.

Application

On the lesser-included question, the court focused on the actual conduct described by the eyewitnesses. The evidence did not show a firearm discharged through mere mishandling, panic, or accidental brandishing. Instead, the State’s evidence was that appellant pointed a gun directly at Ewing’s face. Bowman then intervened by pushing appellant’s arm, and the shot followed in that sequence. That record, in the court’s view, did not create a rational basis to conclude appellant was only reckless. The intervening push did not transform the act of aiming a gun at someone into evidence of mere recklessness; if anything, the jury could still regard the shot as the product of intentional or knowing deadly conduct.

The court’s treatment of the jail calls is the opinion’s practical crossover point. The trial court heard testimony that appellant used jail calls to tell the witness not to come, to say she did not remember if she did appear, and to remain hidden through the trial date. Additional calls involving others referenced housing her away from family and arranging a hotel. The court accepted this as sufficient support for the forfeiture-by-wrongdoing ruling and allowed the witness’s prior statements to come in. It also allowed the calls themselves despite Rule 403 objections, evidently concluding their probative force on admissibility and witness absence was substantial.

That procedural path matters beyond criminal law because it shows a court willing to connect witness nonappearance with coordinated communications about attendance, location, and trial testimony. Once that connection is shown, the evidentiary consequences can be significant.

Holding

The court held that the trial court properly denied the requested manslaughter instruction. Evidence that appellant pointed a gun at Ewing’s face and fired after Bowman pushed his arm did not amount to some evidence that appellant acted only recklessly. Accordingly, no rational jury could have found appellant guilty only of manslaughter on that record.

The court also upheld the trial court’s admission of the jail calls and the absent witness’s statements under forfeiture-by-wrongdoing principles, and it rejected appellant’s remaining evidentiary, mistrial, and jury-argument complaints. The judgment was modified and affirmed.

Practical Application

Family lawyers should read this opinion less for its homicide holding and more for its evidentiary architecture. In a family case, if a witness previously gave a statement about family violence, coercive conduct, financial control, child-endangerment events, or hidden assets and later fails to appear, the receiving court may be asked to determine whether text messages, recorded calls, app-based messages, or third-party coordination evidence explain that absence. If so, the proponent may be able to use that record both to defeat hearsay objections and to justify admission of prior statements that otherwise would not come in cleanly.

Strategically, this means family litigators should think in parallel tracks:

• First, preserve and authenticate communications bearing on witness attendance, availability, and instructions about testimony.
• Second, develop the chronology: subpoena, service, trial setting, failed appearance, last known location, and contemporaneous communications.
• Third, frame Rule 403 arguments concretely. If you are offering the communications, explain why they are necessary to establish the evidentiary predicate. If you are resisting them, target overbreadth, cumulative presentation, and the availability of narrower proof rather than relying on generalized prejudice rhetoric.
• Fourth, when seeking to admit an absent witness’s prior statement, be explicit about the procedural mechanism you are invoking. Do not assume the court will make the inferential leap for you.

In custody and protective-order litigation especially, practitioners should expect more disputes over recorded communications and witness-management evidence. This opinion underscores that the fight may be won or lost in the predicate hearing before the merits witness ever testifies.

Checklists

Building a Forfeiture-by-Wrongdoing Record

• Obtain and file proof of subpoena service.
• Establish the witness’s required appearance date and time.
• Document the witness’s nonappearance with a reporter’s record or docket notation.
• Develop a timeline of communications occurring after service and before the hearing or trial.
• Preserve call recordings, texts, social media messages, and metadata.
• Be prepared to authenticate the speaker identities through voice recognition, account information, PIN usage, context, or corroborating facts.
• Present testimony explaining how the communications relate to the witness’s absence or claimed lack of memory.
• Tie the requested evidentiary ruling to the specific prior statements you seek to admit.

Defending Against Admission of Prior Statements

• Challenge whether the proponent has shown a sufficient causal nexus between the communications and the witness’s absence.
• Test authentication carefully, especially where calls were made from another person’s account, device, or PIN.
• Argue for redaction of irrelevant or unduly inflammatory portions of recordings.
• Raise Rule 403 objections with precision, focusing on cumulative proof and unfairly prejudicial content unrelated to the predicate issue.
• Force the proponent to identify the exact hearsay exception or forfeiture doctrine being invoked.
• Request explicit findings on the record regarding the basis for admissibility.

Framing Lesser-Included Arguments in Violence Cases

• Identify the charged mental state and the exact lesser mental state you want submitted.
• Point to affirmative record evidence supporting the lesser mental state, not merely ambiguity or speed of events.
• Distinguish intentional targeting from mishandling, reflexive conduct, accidental discharge, or other evidence that can support recklessness.
• Avoid relying solely on the existence of a struggle or intervening movement unless the testimony actually supports an unintentional discharge theory.
• Preserve the requested instruction in writing and secure a clear ruling on the record.

Applying the Lesson in Family Litigation

• In protective-order cases, preserve prior witness statements early in anticipation that a witness may later be unavailable.
• In SAPCR cases, collect third-party communications concerning a child’s caregiver, teacher, counselor, or relative witness if attendance becomes contested.
• In property cases, preserve communications relating to accountants, bookkeepers, business employees, or family members with knowledge of concealed assets.
• Consider targeted motions in limine and pretrial evidentiary hearings where witness-availability issues are foreseeable.
• Prepare a narrowed presentation so the court can admit only what is necessary to establish the predicate and avoid overkill.

Family Law Crossover

The procedural mechanism worth tracking is forfeiture by wrongdoing as a pathway to admitting an absent witness’s prior out-of-court statements, coupled with admission of communications that show why the witness is not present. In family law, that issue can arise when a witness with material knowledge in a divorce, SAPCR, enforcement, or protective-order matter has previously made statements to law enforcement, medical personnel, counselors, child-advocacy professionals, or attorneys but later does not appear for hearing or trial. The proponent should be prepared to prove service or expected attendance, nonappearance, the sequence of communications surrounding the hearing date, and the link between those communications and the witness’s absence or changed testimony position. The case also shows that Rule 403 objections will not necessarily defeat such evidence where the communications are the very predicate for admissibility of the absent witness’s statements.

Citation

Scott v. State, No. 05-25-00601-CR, 2026 WL ___ (Tex. App.—Dallas Aug. 18, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion here

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