Scott, Michael

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0862-05

MICHAEL SCOTT, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE THIRD COURT OF APPEALS

TRAVIS COUNTY

Price, J., delivered the opinion of the Court, in which Womack, Johnson,

Holcomb and Cochran, J.J., joined . Keller, P.J., filed a dissenting opinion in which

Meyers, Keasler and Hervey, J.J., joined.

O P I N I O N

The appellant, Michael Scott, was convicted of the offense of murder in the course

of a robbery or burglary, a capital offense, for his involvement in the so-called "Yogurt Shop

Murders" that occurred in Austin in December of 1991. In a prior, separate trial, his co-defendant, Robert Springsteen, was also convicted of capital murder for this offense, and

sentenced to death. After the United States Supreme Court declared that the execution of

juvenile offenders violates the Eighth Amendment, in Roper v. Simmons , (1) the Governor

commuted Springsteen's death sentence to a term of life in prison. The jury in the

appellant's case, however, answered the first special issue in such a way that the trial court

was obliged to sentence him in the first instance to life imprisonment. (2) Accordingly, the

appellant prosecuted his appeal in the Third Court of Appeals.

Among the issues that the appellant raised on appeal was the claim that the trial court

erred to admit evidence of the content of Springsteen's statement to the police over the

appellant's objection that this violated his rights under the Confrontation Clause of the Sixth

Amendment. In a published opinion, the court of appeals acknowledged that the trial court

erred, under Crawford v. Washington , (3) to admit the content of the statement into evidence

during the appellant's trial, but held the error to be harmless under the constitutional-harm

analysis embodied in Rule 44.2(a) of the Texas Rules of Appellate Procedure. (4) We refused

the State's petition for discretionary review, which challenged the holding of the court of

appeals that constitutional error occurred. But we granted the appellant's petition for

discretionary review in which he challenges the court of appeals's determination that the

constitutional error was harmless beyond a reasonable doubt. (5)

Since granting the appellant's petition for discretionary review, we have resolved

Springsteen's direct appeal. (6) In an unpublished opinion, we reversed Springsteen's

conviction and remanded his cause for a new trial, holding that his trial court erred under

Crawford to admit excerpts of the appellant's statement to police into evidence against him,

expressly finding that this error was not harmless beyond a reasonable doubt. (7) Our holding

in Springsteen's appeal does not, of course, mandate that we reverse the judgment of the

court of appeals in the appellant's case. Nevertheless, on the particular facts of the

appellant's case, as developed at his separate trial, we hold that the court of appeals did err

to find the constitutional error to be harmless, and we therefore reverse the lower court's

judgment and remand the cause for a new trial.

THE FACTS AND PROCEDURAL POSTURE

The Undisputed Facts (8)

At 11:47 p.m. on the night of Friday, December 6, 1991, firefighters were called to

the "I Can't Believe It's Yogurt" shop (hereinafter, "yogurt shop") in north Austin. In the

back of the burning establishment they found the nude bodies of four teenage girls:

seventeen-year-old Eliza Thomas and Jennifer Harbison, who both worked at the yogurt

shop; fifteen-year-old Sarah Harbison, Jennifer's sister; and Sarah's thirteen-year-old friend,

Amy Ayers. The .22 caliber wound to the top of Amy's head was not fatal, but she had been

shot a second time in the back of the head with a .380 caliber weapon, which killed her. (9)

The other three were shot fatally in the back of the head with a .22 caliber weapon. Amy's

body was located apart from the other three, on her stomach. A knotted t-shirt was found

beneath her. She had a bruise on the inside of her lip which was consistent with a blow or

a fall. Eliza's body had been "stacked" on top of Sarah's, and Jennifer's body was

discovered nearby, under circumstances suggesting she may also have been "stacked" upon

the other two but had somehow rolled off during the fire. All four bodies were burned to

varying degrees. Amy and Jennifer had ligatures around their necks, and Jennifer's hands

were found behind her back, as if she had been bound, though no binding was discovered.

Eliza's hands were tied behind her back with a bra, and Sarah's were similarly bound with

a pair of panties. Both Eliza and Sarah had been gagged. (10) There was evidence that Sarah

had been sexually assaulted, and a metal scoop lay on the floor between her legs. (11)

The front door of the yogurt shop was locked, with a single key in the door on the

inside. The girls had obviously been in the middle of their closing-up routine when the

killings occurred. The firefighters discovered that the back door, which ordinarily remained

closed and locked throughout the evening shift, had been left "cracked open," apparently by

the assailants. Although all four .22 caliber bullets, and a .380 caliber bullet and shell

casing, were recovered, the police were never able to match them forensically to any

particular weapon. An office in the back of the store remained locked and was never entered

during the offense. The revenue from the day shift had already been "dropped" into a "slot"

in the floor safe that was located in the locked office, but not the revenue from the night

shift. Some $540 was estimated to be missing from the night shift's business.

Despite an extensive investigative effort, the crime went unsolved until, in September

of 1999, a task force that had been organized the year before to review the cold case decided

to re-interview the appellant, and after days of interrogation, obtained an inculpatory written

statement. Because there was no forensic evidence tying the appellant to the offense, the

State's case depended critically upon convincing the jury that his confession was reliable,

and over the course of a six-week guilt phase of trial, the defense team devoted the bulk of

its cross-examination and case-in-chief evidence to challenging that reliability.

The Appellant's Statement

Eight days after the murders, on December 14, 1991, police had arrested sixteen-year-old Maurice Pierce at Northcross Mall, close to the yogurt shop, for possession of a .22

caliber pistol, along with Pierce's companion, fifteen-year-old Forrest Welborn. Police

questioned the two about the yogurt shop killings, and the next day they independently

questioned the appellant, and his roommate, Springsteen, as well. All denied any

involvement in the murders, and later forensic testing failed to establish the pistol as the

murder weapon. In 1998, police launched a review of the cold case, and the Pierce "tip" was

re-examined. On September 9, 1999, detectives arranged to question the appellant with

respect to his knowledge of Pierce's whereabouts on the night of the murders. Shortly into

the interview they began to suspect that the appellant was withholding information. Over

the course of the next six days, the appellant voluntarily submitted to lengthy interrogations

by three different detectives, in various combinations, culminating in a written statement he

gave to yet a fourth detective on September 14th, essentially summarizing the information

that police had elicited from him during those interrogations. The police recorded these

various interrogations, and eighteen hours of video and audio recordings were played for the

jury during trial.

The appellant's written statement was introduced through the State's first witness and

read aloud to the jury. As it appears in the reporter's record, it reads in pertinent part:

On December 6, 1991, I was with my friends Maurice, Rob

Springsteen, and Forrest. * * *

We were at Northcross Mall sitting at a round table at the food court.

Maurice brought up that he needed to get some money. I don't remember the

specifics about what was discussed, but I do know that this is what brought -

what brought what [sic] all this to be.

Maurice and Rob talked * * * about robbing a place. They said this

would be the easiest way to get some money. * * *

* * * I don't remember exactly what time it was, but it was still

daylight. We were all at the table when Maurice said we needed to go and

look around. I believed him to mean he wanted to find a place to rob.

When we left, Maurice was driving his dad's gray Ford LTD. Rob was

sitting in the right front seat. I sat back behind the driver. Forrest was in the

back seat with me. We drove around and looked at the businesses around the

Northcross area. We drove up to the strip mall where the I Can't Believe It's

Yogurt shop was at. We looked at the businesses that were at the mall.

Maurice was the one that said something like "lets go inside and take a look

at the yogurt shop."

Maurice went in and bought a yogurt swirl, chocolate and vanilla. I

followed Rob inside. I sat down, and Rob came over and said something to

me and we got up and made it look like we were going to the restroom.

Maurice was up at the counter talking to at least one of the girls. I

remember that he was talking to the dark-haired girl. Maurice was supposed

to distract them. Rob and I walked out the back and walked around to the

front of the building. When we got around to the front, Maurice was already

in the car eating his yogurt.

We drove back to the mall and we sat at the same table. * * * We were

just talking, not about what was fixing to happen.

* * *

I walked around the mall with Rob. We ran into Maurice again when

we were walking around. Maurice told us that it was time to go. We got back

into his car. Maurice was driving. I was in the back seat, and Rob and Forrest

were in the car with us. We drove around the neighborhood more. I think we

were looking for a route to take and there was talk about how often the cops

drove around and if there was a general route they drove around in.

I know it was dark when we left Northcross Mall. Most of the

businesses were closed when we got over to the yogurt shop. We drove across

the parking lot and drove through the alley behind the stores. We wanted to

see if there was any vehicles parked in the back, or if there were any people

back there. I believe we even wanted to see if the back double doors were still

slightly open.

We drove back through the parking lot and then back to the rear of the

store. I remember the building was on the driver's side, the left side of the car.

We stopped just past the double doors, not more that 50 feet past the doors.

Maurice told Forrest that the only thing that he had to do was honk the horn

if anyone was coming.

Maurice pulled out his gun. I believe that he had it in between the seat.

I know Rob had a gun because he looked at it before we went inside to make

sure it was loaded. Before we went in Maurice told me to make sure that I

brought the can of Zippo lighter fluid. It was the bigger metal can. * * * I

believe Maurice wanted to use it to cover our tracks.

We went into the back door. Maurice went in first, then Rob, and then

I followed them. One of the girls said something like, hey, you, what are you

doing? You don't belong in here. This girl was wearing a T-shirt I believe that

had the name "I Can't Believe it's Yogurt" on it.

I believe that she was working in the back room when we entered the

back. Rob told me to stop and stay right there and not let anyone out the back.

We were all surprised because we expected to find only two girls inside the

store and there were two other girls up at the front in the dining room area

sitting down. I could see the commotion going on up front. I remember

Maurice told me to check the front door to make sure it was locked. He also

told me to check to see if there was anyone out front that could see us.

I checked the door and it was locked. There was one key in the lock.

The door was locked. I looked outside to make sure no one was looking in.

As this went along I got more and more scared. I heard the cash register open.

I heard the drawer being lifted and slammed back. I saw Maurice at the cash

register and I saw him put something in his pocket. I thought to myself that

he had just put money in his pocket.

All the girls were in the back with Rob. I looked out to check the front

again. I heard Maurice say something like "Where in the fuck is the rest of the

money?" I heard the girls crying and one of the girls said "That's all there is.

It's already been dropped and you can't get to it."

I heard Rob say, "Come help me with this." I went back there and he

wanted help tying them up. When I went back there I saw that all four girls

were naked. I believe this is the way that it was because I don't remember

pulling their clothes off. I went to the pile of clothes and picked up some

clothes to use to tie them up. I remember a T-shirt and a bra that we used to

tie them up.

The girls were crying and whimpering. They were begging for us not

to kill them. They said they didn't want to die. I got a paper towel and put it

inside one of the girls' mouth. I remember that my finger pushed through the

towel when I was trying to stuff it in her mouth. This may not have worked

so I may have had to use something else to stuff in her mouth. It was white

like terry cloth. The girls were on their knees. I don't believe they were

standing up because I was looking down at them.

Rob told me to check the front. I went up front and remember what

sounded like one of the girls trying to scream. Maurice was screaming saying

"Where the fuck is the rest of the money?" I heard a bang, a crack. It sounded

like a gun going off. I checked the lock one last time and turned around to see

what happened. One of the girls was already dead. I think Maurice shot that

one. After the shot, Maurice said again "Where in the fuck is the rest of the

money?" And there was a second shot.

I went to the back and saw Rob, and he had one of the dark-haired girls

on her hands and knees and he's raping her, raping her hard. I told Rob that

this wasn't right. That's not what he came here for. Rob stood up, and I don't

know if he finished. I did not see his dick.

I know that Maurice was not back there with Rob. Maurice had gone

into an office and he had one of the girls with him. He was squatting down

and I think she was trying to open a safe or something. Rob told me to do one

of the girls. I believe it was the one that he had just did.

He told me not to be a pussy and told me if I didn't, then I was next.

We laid the girl on the floor and I got on top of her. I tried to do her from the

front. I looked at her. I didn't want to look at her face. She had a piece of

white terry cloth towel on her mouth. I looked away because I didn't want to

see her. I couldn't get it up because I knew * * * that what I was doing was

wrong. I sort of faked it to make Rob think I did her. I got up and remember

either Maurice or Rob telling me to finish her.

I remember grabbing the revolver from Maurice. He told me to finish

her. The girl was still on the floor and I pointed the gun at her and tried to

shoot it first but couldn't. Maurice told me to do it or I would be next. I

pointed the gun again at the girl and fired once into her head. I remember Rob

pushed me toward Maurice. Maurice was in the other room with the other

girl. I don't remember seeing a safe, but I don't remember what she was doing

down on the floor.

I remember looking in the doorway and the gun is still in my hand.

Maurice asked Rob if I did it, and Rob said "Yea, he finished her." Maurice

tole me, you are in this neck-deep already. I saw the side profile of this girl.

She had like a white shirt on. I think she had dark hair. Rob was standing

right there and he had the small semiautomatic gun.

Rob told me not to be a puss. I think I shot her in the head. I've been

not wanting to remember this. I know I have told you had [sic] something

different, but I did her too because Maurice and Rob were pressuring me. I

dropped the revolver. Maurice was mad at me. He asked me where the

lighter fluid was and I had thought I had left it in the car. He told me to go out

to the car and get it.

I looked at Forrest and then I looked at the floorboard and picked up the

lighter fluid. Forrest did not say a word. I went back inside. Rob told me to

burn the place. I saw the girls laying there and I pulled one of the girls on top

of the other. Rob was watching me as I gathered up napkins, cups, and paper

towels and piled them on top of the three girls. I sprayed Zippo fluid on top

of girls. I emptied the can of lighter fluid. I had a Zippo lighter with me and

I lit the fire. I heard a whoosh sound of the accelerant when it caught fire.

I don't remember what I did with the can. I could have threw it on the

pile of stuff in the back of the store. I remembered that my only thought was

to get out. I went outside and remembered that Forest was not in the car

anymore. I had taken a knife from inside the shop. I believe I got it off the

counter. It was a nice knife. I told you all before that I had taken a set of

keys, but it was a knife. I remember now that it was a knife.

Rob and I were already back in the car when Maurice got there. I asked

Maurice where Forrest was. He said that he must have took off. * * * I think

we were in there about 20 to 25 minutes. I'm not sure. We were in the car,

and on the way out we saw Forrest. He was in the parking lot somewhere, and

we picked him up.

I remember driving, but I don't remember what direction we went. We

stopped at some bridge. It was about 10 to 15 minutes away from the shop.

I got out and threw up over the railing of the bridge. I took the knife and threw

it over the rail also. I made sure it was gone. I remember trees and I don't

remember seeing any water. I got back into the car. I don't know what

happened next. I remember being back at the apartment.

* * * The gun that Maurice had was a black .22 caliber revolver,

small. I think it had wood grips. The gun that Rob had was a small

semiautomatic pistol. It had a clip. I think it was a .38. Some of the writing

on the gun was scratched off.

Rob and I split up from Maurice and Forrest. Rob and I spent some

time at the apartment.

I remember on the weekend that I got into a yellow or gold jeep to see

Mary. Mary is a girl I met at music camp who lives in Helotes, which is near

San Antonio.

Maurice was driving and I think Forrest was with us. Rob and I rode

with them to San Antonio. We stayed there maybe an hour. I got a hold of

a newspaper, and I remember reading about the fire and the yogurt shop

murders. I read it out loud to everybody. We drove back to Austin.

The balance of the State's evidence was devoted to convincing the jury that this written

confession was sufficiently reliable, because corroborated by other evidence, to justify a

guilty verdict.

The Remainder of the Evidence

Eliza's mother testified that she was in the yogurt shop sometime between 8:30 and

10:00 p.m. on the night of the murders. During that time, two teenage boys came into the

shop, and one of the boys asked for the location of the bathroom. A second witness, Lucella

Jones, saw two teenage boys in the yogurt shop at approximately 8:15 p.m. Yet a third

witness, Dearl Croft, observed a "young man" in the yogurt shop at about 10:00 p.m. who

asked be allowed to go to the back of the shop to use the restroom. None of these witnesses

specifically identified the appellant as among the teenage boys they had seen. (12) Although

this testimony tended to corroborate the appellant's written statement that he had gone to the

yogurt shop earlier in the evening of December 6 th , it conflicts with his claim that it was "still

daylight" at that time. Chandra Morgan, a friend of Pierce's, accompanied Pierce, Welborn,

and two other boys she did not know (but one of whom she identified in court as the

appellant) to the yogurt shop at approximately 10:00 p.m. But according to her testimony,

the two boys she did not know (including the appellant) left the shop through the front door,

not through the back door as the appellant's written statement indicates. Later that night

(presumably after the offense), Morgan ran into the boys again. At this time she saw that one

of the two boys she did not know-she thought it had been the appellant, but she was

uncertain-had the butt of a gun sticking out of his waistband. (13)

The first arson investigator to analyze the scene, from the Austin Fire Department,

concluded that the fire started on a shelf along a wall in the back room where the bodies were

found. After the appellant's confession in 1999, however, the State sought a second opinion

from a fire expert from the Bureau of Alcohol, Tobacco and Firearms. This second expert,

who never viewed the scene itself, concluded that the fire had actually originated on

styrofoam cups and paper products placed on top of the three stacked bodies in the center of

the room, just as the appellant asserted in his written statement. After reviewing the ATF

agent's report and the crime scene photographs, the local arson investigator changed his

opinion to concur with the ATF agent's conclusion about the origin of the fire. Investigators

found neither any trace of an accelerant nor a can of lighter fluid at the scene. Nevertheless,

they did not rule out that an accelerant had been used. For its part, the defense presented a

crime-scene analyst with substantial experience reconstructing crime scenes involving fire.

He testified that in his opinion, had an accelerant been used, some trace of it should have

been found. Moreover, in his estimation, the fire began somewhere on the floor, located

within an area that was away from the center of the room in which the bodies had been

stacked. (14)

Throughout trial there was a controversy with respect to the kind of locking

mechanism on the back doors. The manager of the yogurt shop testified on direct

examination that she was "certain" the back doors were locked with a "thumb latch" on the

inside, and could be unlocked on the outside only with a key. She personally kept a key to

those doors, but could not "recall if anybody else did." On cross-examination it was shown

that in 1998 she had been unable to remember the kind of locking mechanism that was on

the back door, and that she decided it had been a thumb latch only after she viewed a

photograph of the lock after it had been changed sometime after the fire . On re-direct she

revised her testimony to say that to the best of her recall, the back doors had had a "thumb

latch" mechanism. A shift manager similarly testified that she had thought that the back

doors had what she called a "twist lock," and could not recall ever having to get a key to

open them from the inside, but on cross-examination she had to admit that she was not

certain. The defense strove to convince the jury, primarily from photographs of the crime

scene that were apparently dimly lit and indistinct, that there was, in fact, no thumb latch

mechanism, and that, at the time of the offense the back doors could be opened, even from

the inside, only with a key. In the view of the defense, this evidence tends to contradict that

portion of the appellant's written statement in which he admitted that he had first exited, and

then later re-entered, the yogurt shop via the back doors. (15)

Sarah Adair, a friend of the appellant who also knew Pierce, Welborn, and

Springsteen, was questioned by police about the yogurt shop murders sometime in December

of 1991. The police had questioned her about other of her friends, but afterwards the

appellant approached her to find out whether the police had asked her about him. The

appellant also wanted to know whether the police had inquired about someone who had been

arrested at the mall with a .22 caliber pistol (presumably Pierce). The appellant was

unusually persistent in his inquiries. Afterwards, the appellant talked to Adair's older sister,

Amanda Statham. When Statham asked the appellant why the police had talked to him, "he

told [her] that he had - that he had done it." Afterwards the appellant "[t]ried to laugh it

off." Although the appellant's comment upset Statham, when she told her mother about it,

her mother did not take it seriously, and would not let Statham report it to the police. On an

earlier occasion Statham had overheard the appellant tell Welborn "to keep his fucking

mouth shut."

After the appellant was arrested, and as he was being booked into jail, a booking

officer routinely asked him whether he had ever contemplated suicide. When the appellant

answered that he had, the officer asked him when. The appellant replied that on December

6, 1991, he had thought about shooting himself.

The defense presented evidence to suggest that many of the particulars from the

appellant's written statement was information that was publicly known, either from press

releases and newspaper articles or by word of mouth, perhaps originating from the numerous

police officers and firefighters who had responded to the crime scene. For example, it had

been reported back to the police from various outside sources that the perpetrators had

entered through the back door, that one of the girls was shot twice while the others were shot

only once, that one of the three girls had been separated from the others and shot with a

different gun, and that the other three bodies were found with their hands tied behind their

backs and had been "stacked in one pile." The most closely guarded "hold-back" detail that

the police had apparently preserved, however, was the fact that the second weapon that had

been used to kill Amy was a .380 caliber. Except for Springsteen's statement, this one

crucial "hold-back" fact was apparently never reported back to the police. (16) In the months

after the offense occurred, the police obtained at least two statements from individuals who,

both parties now agree, had falsely confessed. The defense argued that, like the appellant's

statement, these false confessions contained both accurate and inaccurate details. Like the

appellant, one of these false confessors asserted that a .38 caliber weapon had been used.

Moreover, a group of teenagers in the community, known informally as the "People in

Black"(for the dark, "Goth" clothing they wore), was circulating rumors containing both

accurate and inaccurate details about the offense. Appellant was acquainted with some of

the members of this clique. The parties asked the jury to draw competing inferences from

this fact. The defense argued that the appellant obtained the information he gave to the

police during his interrogation from the clique; the State argued that members of the clique

were merely disseminating information they obtained from the appellant.

The Appellant's Interrogation

On September 9, 1999, the appellant was questioned by the police for approximately

twelve hours, between nine o'clock in the morning and ten-thirty that night. The interview

was interspersed with frequent smoking breaks, and one prolonged interruption while the

detectives took the appellant out to the former site of the yogurt shop. At first, and for

several hours, the appellant denied any involvement in the murders. Eventually he claimed

that, on the drive to San Antonio in the SUV, Pierce had asserted that he knew who had

committed the yogurt shop murders. When the appellant could not tell his interrogators

precisely what Pierce had said, they insisted that he did remember, and described for him a

process they called "revivification," whereby the mind is like a VCR in which memory is

stored, "and you have the ability to bring that stuff back if you think about it hard enough

and you clear your head of all this other stuff." (17)

A turning point came when, after the detectives repeatedly urged the appellant to

"visualize," (18) they suddenly asked him whose idea it had been to rob the yogurt shop. The

following colloquy ensued:

Scott: Huh?

[First Detective]: Whose idea was it to go there?

Scott: Idea?

[First Detective]: Here we go again. Getting into that non-responsive

mode of yours. How long do you think you can keep

that up?

Scott: Wait a minute.

[First Detective]: You need some time to think real hard, buddy. Because

the next phase . . .

Scott: Yeah.

[First Detective]: . . . is coming really quick. Real quick. And your

opportunities are slowly diminishing. But you realize

that, don't you?

[Second Detective]: Whose idea was it?

Scott: Maurice's.

[Second Detective]: Right.

At this point in the process, the appellant admitted knowledge of the murders, but persisted

in claiming he could not remember details.

At first he insisted he had not gone into the yogurt shop himself, and that Pierce and

Springsteen had gone in through the front door. Asked whether they had carried guns, the

appellant initially asserted that he could not remember, but that Pierce might have. He

eventually described Pierce's gun as a .38 caliber revolver. When the detectives asked him

if a second gun had been used, the appellant first could not remember whether Springsteen

had had a gun. Later he said that he had seen the handle of a pistol in Springsteen's

waistband. He volunteered that it had had a wood or "wood facsimile" handle, but when

they inquired whether he knew what an automatic looked like, he suddenly changed his story

and claimed it had been, in fact, an automatic. (19) He could not tell them the caliber of this

second gun, and soon after stated that he was not really positive Springsteen had had a gun

at all. (20)

When one of the detectives asked whether they had "cased" the yogurt shop, the

appellant acknowledged that they had. First he said they had noticed that the back door of

the yogurt shop had been "propped open," but he later abandoned this assertion. (21) The

appellant continued to insist he had not gone in, even though the detectives accused him of

"minimizing" his involvement, to his eventual detriment. (22) He even alluded at one point to

the fact that "we" came back out of the shop and drove off, but immediately insisted he had

misspoken. When the appellant offered no additional details, the detectives threatened to

"just take him to the Grand Jury and - he don't want to talk about it no more." The appellant

broke down crying, but insisted, "I can't remember." The following soon occurred:

Scott: . . . I . . . I don't remember going inside the-

[Detective]: Michael, Michael.

Scott: Are you telling me I went inside?

[Detective]: I know you went inside. Let's finish this today. You went

inside there with Maurice and Robert. And you know you did.

You've been doing great up until now. These things are coming

back. But you know you went inside there with them.

* * *

Scott: I don't remember going inside.

[Detective]: Come on, Michael. You went inside. Earlier you said, "We ran

back out to the car." Meaning you, Maurice, and Robert. You

said, "we." Well, "we" did. Michael, you went with them

inside that store.

Scott: Okay.

The detectives falsely assured the appellant that they knew "all about" "those two guns."

They told him that they did not believe he had shot the girls. The appellant asked, "Look,

can I tell you all what I keep seeing in my head? * * * I keep seeing these girls get shot."

He followed this almost immediately with the disclaimer: "I don't know if this is real or not

or if this is-," at which point one of the detectives interrupted him to assure him, "Michael,

it's real." Even as the appellant began to describe events inside the yogurt shop, he

continued periodically to claim, e.g., "I don't honestly remember going in the building."

According to the appellant's initial version of these events, when they first entered the

yogurt shop, one of the girls (he could not say which but remembered that she was wearing

a uniform) screamed and ran toward the front. Springsteen grabbed her and "spun her

around." (23) Pierce then brought all four of the girls to the cash register and demanded to

know "where the rest of the money was." Without prompting, the appellant informed the

detectives that one of the girls told Pierce, "There isn't anymore. They've already made their

drop." Pierce then shot two of the girls there behind the counter. (24) The detectives

immediately began to inquire, "Did they do anything else to these girls?" They assured the

appellant that they already knew what had happened to the girls and "[w]hat they were

wearing[.]" The appellant could not remember.

After a break, the appellant remembered the girls had been tied up, but could not

remember with what. He thought they were wearing their uniforms when they were tied up.

The detectives immediately accused him of "starting to go off in this other tangent and

bullshit with us again." The appellant replied, "I can't even remember going inside the place,

guys. I don't remember walking through the doors." Pressed, the appellant first said that the

girls had been tied with an extension cord. Then he said it was a napkin, or "something

white." Finally he told the detectives:

Scott: A T-shirt. And I want to say electrical cord.

[Detective]: No. Think harder. A T-shirt and something else.

Scott: Um-

[Detective]: I'm not going to tell you. Because you know. I want to hear it

from you.

Scott: I . . . I'm trying to remember, guys.

[Detective]: Something else.

Scott: It was a T-shirt and something else.

[Detective] And you helped Rob tie them up?

Scott: I think - I guess I did. (25)

[Detective]: Yeah. You did. What were the girls wearing by the time they

were tied up? What were they wearing? Michael, that's a

gimme. That's an easy one.

Scott: Not a whole lot.

[Detective]: Not a whole lot.

Scott: Used their own clothes to tie them up.

[Detective]: Used their own clothes to tie them up. You and Rob. And by

the time you were done, what were they wearing? Say it.

Scott: Nothing.

Next the detectives suggested to the appellant that Pierce and Springsteen had made

him do "something else" to the girls. The appellant first asserted that they had made him

"start kicking them." Told that "that ain't it," he next asked, "I didn't choke one of them, did

I?" When this did not satisfy the detectives either, the appellant said, "I don't think I raped

them. That's not me. Was one of them raped?" To this query, the detectives responded by

asking the appellant whether one or two of the girls were in fact raped. The appellant

responded: "I think one of them got raped." Perhaps thinking of the metal scoop, the

detectives next began pressuring the appellant to tell them "how" the one girl was raped. But

at no point during the remainder of the interrogation process did the appellant ever mention

the metal scoop.

Under renewed pressure to tell the detectives what he had been made to do, the

appellant reported, first that he had been forced to garrote one of the girls, then that he had

been forced to bludgeon them. Finally, the appellant observed, "I had a pocket knife on me."

The detective interjected: "That's four. Kicking, strangling, bludgeoning, knifing. No." At

this juncture the appellant asked:

Scott: They didn't make me shoot them, did they?

[Detective]: Well, did they? Tell us. I want to hear it. Did they? Did either

Maurice or Robert make you shoot those two girls? Or both of them? Say it,

Michael? Is that what happened?

Scott: I think so.

[Detective]: You think so?

Scott: I think so.

Asked with what gun, the appellant asserted that he had used Pierce's revolver. (26) First he

claimed to have shot one girl in the back of the head and the other in the temple. But soon

after, at the prompting of one of the detectives, he changed again, acknowledging that he had

shot both girls in the back of the head.

Next, the detectives wanted to know whether Springsteen had shot anyone with the

semiautomatic pistol. The appellant indicated that Springsteen had shot one of the two girls

whom he had earlier claimed were shot behind the counter. One of the detectives then asked,

"So one of the girls, you're saying, was shot twice?" This is the first mention by anyone that

one of the girls may have been shot a second time with a different gun. The appellant said,

"no." But at the detectives' suggestion they immediately took another break, during which

the appellant had a "flashback," suddenly remembering that Springsteen "may have shot one

of the other girls again because she was still alive." Even after this apparent epiphany, the

appellant continued to claim that all four girls had been shot "behind the counter." (27) Without

further prompting, he told the detectives he thought he had heard "a total of five shots. But

I'm not positive."

The detectives shifted gears to talk about the fire. The appellant claimed that Pierce

had started it by piling up styrofoam cups and napkins "[c]lose to the girls." Later he

volunteered that Pierce may have piled the stuff on top of the girls, but at this point he still

maintained that they had all been shot behind the counter in the front part of the store. Pierce

then set the fire with a Zippo lighter. Almost immediately the appellant changed his story,

however, telling the detectives he did not see who set the fire.

At the appellant's request, the detectives took him out to the scene where the yogurt

shop had been. What occurred there went unrecorded, but by the time they returned to the

interrogation room, the appellant had reported certain additional memories. (28) He

remembered for the first time that he and Springsteen had gone into the yogurt shop earlier

in the evening and exited the back door. He also remembered seeing keys in the front door. (29)

For the first time, he clearly asserted that the girls were all taken to the back of the shop. At

this point the appellant helped tie their hands and feet. (30) Pierce shot the first two girls in the

back of the store, and then the appellant was made to shoot Amy, but he did not kill her. As

he headed out the back door, the appellant heard two more gunshots. The appellant

acknowledged in response to a leading question that the last shot he heard had sounded

different from the others.

The next morning, on September 10, 1999, the appellant initially denied that he had

ever gone into the yogurt shop other than to step into the back door after he heard the

gunshots. Even so, he claimed to remember having seen the keys in the front door, and

looking out the front window of the shop. The detective then assured the appellant that they

had no doubt he was in the yogurt shop, and that he "pulled the trigger" while there. The

appellant soon acknowledged that he "probably shot one of them. I made a guess yesterday

of who it was. But I'm not sure." The detective then used a visualization technique to try

to enhance the appellant's memory, but, although for the first time he tentatively suggested

he might have been the one to set the fire, he still claimed not to be able to remember having

shot any of the girls. The detective began to accuse the appellant of having shot all four of

the girls. The appellant responded, "I can't remember shooting anybody. You all are telling

me that I did." A short time later he told the detective, "I was telling you all what you all

wanted to hear." He broke down crying, and they took a break.

After the break the appellant again acknowledged that he had fired the gun once, and

that he had set the fire. "I remember a can of Zippo fluid." The detectives pressured the

appellant to tell them where he had set the fire, to which he replied, "I . . . I piled it up on top

of them?" "Michael, don't ask me," one of the detectives told him. A short time later,

weeping, the appellant affirmed, "I set them on fire." "Yes, Michael," the same detective

assured him. Even so, a short time later, when asked how close the pile was to the girls, the

appellant replied, "I don't remember yet. I will remember." He thought he threw the empty

Zippo can onto the pile and then set the fire. He could not remember where.

Asked what else had happened to the girls before the fire was set, the appellant

admitted, "They made me rape one of them." He could not remember which one. (31) He

seemed puzzled when a detective asked, "What did you rape her with?" (32) With some

prompting, he said the girls were no longer screaming because they were gagged. The

detectives assured him he could remember what they were gagged with, but he could not,

other than to say that it had been white. (33) Then, in an apparent attempt to get the appellant

to admit that Amy had been left in another part of the room, not on the pile with the other

girls, the detectives asked:

[First Detective]: Now you told us that one of the girls had run earlier.

Right?

Scott: I don't remember.

[First Detective]: It's okay. Hold on just a second. Who . . . who, if

anybody, raped her? And I'm not saying that she was,

I'm just asking. Did anybody-

Scott: I don't think so. No.

[Second Detective]: Where was she at?

[First Detective]: Whenever you were squirting lighter fluid on these girls,

where was that girl at?

Scott: I'm not sure. I'm not sure. I don't- I'm not sure.

When the detectives continued to press him to tell them how the bodies had been arranged,

the appellant answered that Pierce had instructed him "to pile them up and burn them." At

the end of the interview he remembered that it had been Springsteen, not Pierce, who had

handed him the gun, and, for the first time, he claimed to have been the last one to leave the

yogurt shop after setting the bodies on fire.

On September 13, 1999, the police interviewed the appellant for the last time before

he gave them his written statement the next day. In that last interview, which was relatively

brief, he remembered seeing Pierce with one of the girls in a separate room he thought might

have been an office. He also thought that he had gagged one of the girls with paper towels

or napkins. Finally, he again recalled that the gun he had shot the girl with had come from

Springsteen rather than Pierce, and that it was a .22 caliber. Under persistent questioning,

he failed to remember with any certainty the caliber of the second gun, but thought it had

been a semiautomatic .38 caliber.

Springsteen's Statement

On September 15, 1999, several of the investigating detectives interviewed Robert

Springsteen for five and a half hours in Charleston, West Virginia. One of the detectives

summarized what Springsteen told them during the course of the interview, (34) thus:

Q. All right. Did Mr. Springsteen admit participation in the yogurt shop

murders to you?

A. Yes, sir.

Q. All right. Can you tell me what he told you with regard to that topic.

A. He said as we talked to him - he originally said that he did not know about

the murders, did not even know they had occurred until he had been

interviewed by the police.

As the interview continued, he remembered he bought a newspaper and

read it in a stolen Pathfinder on the way to San Antonio. During the interview,

Robert Springsteen admitted involvement in the murders by telling us that he

went into the yogurt shop prior to the robbery and opened the back door so he

had a way to get in.

Robert Springsteen said he went through the front door, then went to

the bathroom. Robert Springsteen said when no one was looking he unlocked

and opened the back door. Robert Springsteen said he propped it open by

using a folded pack of cigarettes or a rock to keep the door from shutting all

the way, saying it wasn't noticeable unless you were looking right at it.

Robert Springsteen said at some point in time he went back that evening. He

said he went through the back door.

Robert Springsteen said there was a silver .380 automatic handgun used

in the yogurt shop. Robert Springsteen said he raped a girl; stated he did not

think he ejaculated. He said he shot a girl in the back of the head with the .380

as she was crawling, screaming, and crying. He demonstrated the position that

Amy Ayers died, which was the position we found her in after the fire was

extinguished.

Robert Springsteen talked about hearing a total of five shots, maybe six,

but remembered five. And after the robbery, Robert Springsteen said he left

the yogurt shop, went to a bridge where he got out of the car and threw up.

Then he ended the interview before we were complete.

The detective also showed the jury a still image from the video of Springsteen's

interrogation. In that still image Springsteen demonstrated the position of Amy's body on

the floor as they had left it. The State invited the jury to compare the similarities between

this still image and photographs of Amy's body as it had been found at the scene. The

detective assured the jury that Springsteen's interrogators did not prompt him to say that he

had left the back door of the yogurt shop open so that he could later get back in that way.

Nor did they suggest to him that he should say that the second gun used in the offense was

a .380 caliber, that they had read a newspaper on the drive to San Antonio, or that he had

vomited at the bridge after the offense.

The Final Argument

Given the length and complexity of the trial, the trial court allotted each side several

hours for final argument. Very early on, the first prosecutor to argue alluded to 1) the fact

that Springsteen was aware of Amy's position when she was killed, 2) Springsteen's

assertion that the killers had come in through the back door, and 3) Springsteen's explanation

that he had propped the door open with a cigarette pack or a rock. Later, after the defense

had concluded its final argument, the State addressed the issue of the false confessions. The

second prosecutor contrasted the appellant's confession by explicitly pointing out that

Springsteen had corroborated it, whereas the individuals whom the false confessions had

implicated as participants had flatly denied any complicity and had provided alibis. (35)

The prosecution saved the bulk of its argument with respect to Springsteen's statement

until the very last. Just before the jurors retired to deliberate, they heard the lead prosecutor

make the following argument:

So Michael Scott gives his confession to police and as [one of the

investigating officers] says, we still have homework to do. So they go to West

Virginia and they talk to Robert Springsteen who has not been in Austin since

1992, early part of 1992. And the tactics that were employed - sitting in his

room silently for 10 or 12 minutes waiting for him to decide to confess. That's

the tactics you heard about, among others obviously.

Michael Scott's written statement about the newspaper in the Pathfinder

- I'll let you read that when you get back in the jury room. But he talks about

it. Robert Springsteen's interview. Robert Springsteen remembered he bought

a newspaper and read it in a stolen Pathfinder on the way to San Antonio.

We got to go back through the questions that led to this response. They

just asked him: Do you remember a Pathfinder? He said, we went to San

Antonio and as a matter of fact bought a newspaper on the way down. Bought

it Sunday morning before 6 a.m. That came from Robert Springsteen without

being fed information by the police. It's in the record.

THE COURT: Ten minutes

MR. SMITH: Thank you. I'm running out of time, so you know what

Michael Scott says about the restroom, how they went in, opened up the back

door, left it ajar so they could come back. Robert Springsteen in West

Virginia, a completely different state, who hasn't been talked to by the police

en route to the police department, whose entire confession up there is on

videotape, says that they went into the yogurt shop prior to the robbery,

opened up the back door so they had a way to get in.

The question that elicited that response was [another detective]saying:

You just remembered. I saw your head move. Tell me about it.

Answer by Mr. Springsteen: At some point in time, came through the

back door, opened up the back door. Says he went through the front door,

went to the bathroom. When no one was looking, he unlocked it and opened

the back door, used a folded pack of cigarettes or rock to keep the door from

shutting all the way.

Michael Scott's written statement talks about coming back in through

the back door. Robert Springsteen, same thing in West Virginia the next day.

So at some in [sic] point in time he went back that evening, came in through

the back door.

Michael Scott's written statement about sexual assault. Robert

Springsteen's interview - that's okay. We can just leave that one right there.

Robert Springsteen's interview. Michael Scott described that gun as a

James Bond gun, a small semiautomatic. And you saw one here in court. Very

small, equivalent of a nine millimeter, will fit in the palm of you hand.

Michael Scott calls it a James bond gun. Robert Springsteen said it's a silver

.380. That information was a closely guarded fact in this investigation.

Robert Springsteen knows the answer to that question.

Said Amy was shot or he described the person he shot as she was

crawling, screaming and crying. Are you going to tell me based on all that

information in the corner over there by the office wall that anybody can say

that she didn't flop around and she never crawled?

Michael Scott's statement about going to a bridge and throwing up.

Robert Springsteen, same thing in West Virginia. The questions that elicited

this response from Robert Springsteen were: Where did you drive to? He said,

thank you, thank you. There is a bridge, a little stream over there by the

yogurt shop. What did you do? He mentions that he threw up. These facts are

not suggested to him. That, ladies and gentlemen of the jury, right there is a

neutral fact. A neutral fact that only these two people know.

As you wade through the evidence, I have some objective facts for you.

I have some objective facts for you. Michael Scott describing the body

positions, two girls like this. One girl laying on top. Robert Springsteen

talking about the girl that he killed. Those are objective facts. That's

information right there, ladies and gentlemen, that only the people who

committed this offense could know.

Stay in there as long as you have to. If somebody decides that they

have a problem with this case, you get them to explain these two pieces of

information, and that piece of information in the middle where they both know

about going to a bridge and throwing up.

In essence, the prosecutor thus invited the jurors to resolve any doubt they might otherwise

have about the reliability of the appellant's confession by considering how closely it

corresponded to Springsteen's, both in the details of the offense itself, and in other, "neutral"

aspects. He also urged the jury to consider that, unlike with the appellant, the interrogating

officers had not suggested answers to Springsteen. The jury deliberated from 3:34 p.m. on

a Friday until 3:15 p.m. the following Sunday before reaching a guilty verdict.

On Appeal

On appeal the appellant challenged the legal and factual sufficiency of the evidence,

an issue that is not presently before us. In the context of rejecting these points of error, the

court of appeals recognized that the State's case against the appellant was predicated on his

own statements to the police, since there was no forensic evidence tying the appellant to the

offense independent of his statement. The court of appeals acknowledged that there were

components of the appellant's statements that did not match up to the crime scene.

Nevertheless, the court observed that many of the details of the appellant's account do

coincide with the known facts, and held that a rational jury could have found him guilty

beyond a reasonable doubt, and that the appellant's jury having found him guilty did not

amount to a manifest injustice on the facts of this case. (36)

When it later came to consider whether the admission of Springsteen's statement

might have contributed to the jury's guilty verdict, the court of appeals seems to have

discounted the potential problems with the appellant's statement that might have caused a

rational jury to doubt its reliability. (37) The court of appeals conceded that Springsteen's

paraphrased statement was "admitted to corroborate [the appellant's] statements and thus to

rebut [the appellant's] defensive claim that his statements were unreliable and untrue." (38) The

court of appeals nevertheless identified three circumstances that it believed converged to

supply the jury, quite apart from Springsteen's statement, with "overwhelming support [for]

a finding that [the appellant's] statements are true." (39)

First, the court of appeals cited the many details in the appellant's statements that

corresponded to the physical evidence at the scene. (40) Second, the court of appeals stressed

that it was not until the appellant informed investigators where the fire originated that they

realized that their original expert's assessment of the fire's origin was wrong. (41) Third, the

court of appeals pointed to other evidence that independently corroborated aspects of the

appellant's statements. (42) The court of appeals acknowledged that the prosecutor argued to

the jury at some length about the interlocking nature of the appellant's and Springsteen's

statements. But the court of appeals discounted the significance of this argument because

the State had spent the great majority of its argument emphasizing the other facts that

matched the appellant's version of the murders. (43) In the analysis that follows, we will

address each of these considerations in turn.

THE LAW

In determining specifically whether constitutional error under Crawford may be

declared harmless beyond a reasonable doubt, we recently observed that the following

factors are relevant: 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. (44) As the court of appeals rightly

noted, the emphasis of a harm analysis pursuant to Rule 44.2(a) should not be on "the

propriety of the outcome of the trial." (45) That is to say, the question for the reviewing court

is not whether the jury verdict was supported by the evidence. Instead, the question is the

likelihood that the constitutional error was actually a contributing factor in the jury's

deliberations in arriving at that verdict-whether, in other words, the error adversely affected

"the integrity of the process leading to the conviction." (46) In reaching that decision, the

reviewing court may also consider, in addition to the factors listed above, inter alia , the

source and nature of the error, to what extent, if any, it was emphasized by the State, and

how weighty the jury may have found the erroneously admitted evidence to be compared to

the balance of the evidence with respect to the element or defensive issue to which it is

relevant. (47) With these considerations in mind, the reviewing court must ask itself whether

there is a reasonable possibility that the Crawford error moved the jury from a state of non-persuasion to one of persuasion on a particular issue. (48) Ultimately, after considering these

various factors, the reviewing court must be able to declare itself satisfied, to a level of

confidence beyond a reasonable doubt, "that the error did not contribute to the conviction"

before it can affirm it. (49) After our own review of the record, we are unable to achieve that

level of confidence that Springsteen's statement did not contribute to the appellant's

conviction.

APPLICATION OF THE LAW TO THE FACTS

Appellant's Statement Matches the Physical Evidence

The court of appeals initially focused on assertions in the appellant's oral and written

statements that corroborated the physical evidence. We will examine the corroborative value

of those assertions more or less in the order that the court of appeals listed them:

•The appellant knew that the front doors were locked and that a key had

been left in the lock.

This fact was known to some of the responding firemen, and defensive evidence suggested

to the jury that some information known to the firemen may have been disseminated to the

public. It is also notable that the appellant did not mention that it was a single key that had

been left in the door until he gave his written statement.

•He knew that the killers had entered through the back door, which had

been left open.

One of the recurring issues during the course of trial was the nature of the locking

mechanism on the back door. If, as the defense contended, at the time of the offense the

back door could be opened only with a key, then the appellant's account that he and

Springsteen had left the back door open so that they could reenter later to perpetrate the

crime would likely be false, not corroborative. It is difficult to tell from a cold record how

plausible this theory might have been. But it is certain that Springsteen's statement,

containing a similar account, was highly damaging to this defensive posture.

•He knew that the money had been "dropped."

In describing what one of the girls had told Pierce with respect to handling the day's receipts,

the appellant seemed to know without prompting the specific terminology-"dropped"- that

employees of the yogurt shop used. The day-shift receipts had already been "dropped" in

the floor safe at the time of the offense, but not the night-shift receipts.

•He knew that one of the girls had been slapped, a fact confirmed by

evidence that Amy had an abrasion on her lip.

The forensic pathologist testified that Amy had a lip contusion that was consistent with

sustaining a blow or a fall. At one point, while describing one of the girls telling Pierce that

the money had already been dropped, the appellant, obviously "visualizing" again, asserted:

"I hear somebody get slapped." He could not remember who did the slapping or who got

slapped, but the context in which he purports to remember it suggests it was Pierce slapping

Eliza or Jennifer, one of the employees, rather than Amy. Later he told the detectives that

Springsteen had slapped one of the girls whom he had "spun around" at the beginning of the

offense. He did not remember which girl this was, but since he described her as wearing a

uniform, it is unlikely it could have been Amy. Still later he revised his story to say that it

had happened toward the end of the incident. When they revisited the slapping incident one

more time, with photographs of all of the girls displayed, the appellant manifested confusion

as to which girl had been slapped. On the second day of interrogation he once again asserted

that the incident happened early rather than late, and that Pierce rather than Springsteen had

done the slapping. In short, his account of the slapping incident was tentative, vague, and

vacillating. At times he seemed to doubt it had happened at all. He left it out of his written

statement altogether.

•He knew the type of weapons used.

Throughout the early part of the interview process, the appellant maintained that Pierce had

carried a .38 caliber revolver. Later he expressed some uncertainty whether it had been a .38

caliber or a .22 caliber, and he was encouraged by the police to believe it had been the

latter. (50) He later came to assert that the semiautomatic that Springsteen had carried was the

.38 caliber. The most closely guarded "hold-back" fact, that the second weapon had actually

been a .380 caliber, was a detail the appellant apparently did not know. The fact that

Springsteen revealed this detail to the police with relatively little prompting was very

incriminating to the appellant.

•He knew that Amy was still alive after he shot her, and he knew the

number of shots that were fired.

It was the detectives who first suggested to the appellant that "one of the girls . . . was shot

twice." Only after this suggestion did the appellant first remember that Springsteen shot one

of the girls a second time. It would not have been difficult at that point for him to calculate

that he must have heard a total of five shots.

It might also be added to the court of appeals's list that the appellant asserted that the

girls had been tied with articles of their own clothing. But at first the appellant was at a

complete loss to tell the detectives what the girls had been tied with, and his most persistent

assertion was that it had been an electrical cord. Only after one of the detectives alluded to

what the girls were wearing (intimating that they were wearing nothing at all) did the

appellant assert that they had been stripped naked and bound with their own clothing.

Indeed, very few of the corroborative details cited by the court of appeals are immune to the

appellant's criticism that they were either suggested to the appellant to varying degrees by

the interrogating officers, or were already available to some portion of the public at large as

indicated by the accurate details supplied by some of the known false confessors.

Moreover, like others who gave known false confessions to the police, the appellant

supplied many details that either conflict with, or at least are not corroborative of, the known

physical evidence. For example, according to the appellant's persistent account, Pierce was

trying to get the first two girls that were shot (presumably the employees, Eliza and Jennifer)

to tell him where the money was right up to the point that he shot them. But Eliza was found

with a gag over her mouth, which would have made it difficult for her to talk, and Jennifer

also had a gag, albeit one that had slipped down around her neck by the time she was

discovered. For most of the appellant's interrogation he insisted that all four girls had been

shot behind the counter in the front of the store, but there was no physical evidence that any

of the girls were shot there. The appellant claimed to have helped tie the girls' hands and

feet , though no evidence indicates their feet were tied. He did not know that the girls had

been gagged with socks. Investigators found neither an empty can of Zippo lighter fluid, nor

any vestige of an accelerant at the scene. The appellant claimed that Pierce had taken one

of the girls into the office, but it was uncontested that the office remained locked for the

duration of the offense. He also claimed that the girl in the office still had a shirt on, though

all four girls were found nude. He claimed at various times that he shot one of the girls in

the temple or in the face, though none of the girls was shot in these places. Finally, despite

repeated efforts on the part of his interrogators to get him to do so, the appellant never

offered any mention of the metal scoop.

Point of Origin of the Fire

The court of appeals placed greatest emphasis upon the fact that it was not until the

appellant's interrogation that the fire investigators realized that the fire had actually been set

on top of the girls' stacked-up bodies, rather than on a shelf as they had originally thought.

The court of appeals characterized this as the "most critical corroborating fact," and placed

great weight upon it in its harm analysis. (51) However, the court of appeals failed to consider

the fact that whether the fire had actually been set as the appellant eventually described

during his interrogation, and then repeated in his written statement, was perhaps the most

hotly contested issue of the trial. A jury that believed the State's expert testimony as to the

origin of the fire would indeed have found the appellant's account highly corroborative. But

the State's own local expert had not originally thought the fire had started as the appellant

later described, and the appellant's crime scene reconstruction expert expressed the opinion

in the presence of the jury that the fire had not started either on a shelf, as originally

believed, or on the bodies of the girls, as the appellant claimed and the State's re-evaluation

confirmed, but at a third location altogether. These circumstances might have led the jury

to doubt the corroborative value of the appellant's account with respect to the fire's origin,

had the appellant's version of the events not been otherwise corroborated by Springsteen's

confession.

Other Corroborating Evidence

Although Chandra Morgan corroborated the appellant's claim that he and the others

had cased the yogurt shop before the offense, her testimony was impeached, and none of the

other witnesses who were in the yogurt shop that evening could positively identify the

appellant. Only one of the suspicious statements the appellant made to friends shortly after

the offense was directly incriminating, and the witness's mother did not take that admission

seriously enough at the time to notify the police. During final argument, one of the

prosecutors emphasized the appellant's book-in statement that he had contemplated shooting

himself on December 6, 1991, the night of the offense. She pointed out that for the appellant

to have admitted considering suicide on the very night of the offense implicated him in the

offense quite apart from any statement he had given to the police during the interview

process. The jury would have been more than justified in viewing the evidence this way.

But the jury might also reasonably have discounted this evidence as nothing more than

confabulation on the appellant's part-another unreliable by-product of "revivification" and

"visualizing," the faulty memory-enhancing techniques used by the police, had Springsteen's

confession not corroborated the appellant's inculpatory statements.

In short, though there was a fair amount of evidence independently corroborating the

appellant's account, almost none of it went unchallenged or unimpeached in one respect or

another by the defense. We do not think the court of appeals was justified in characterizing

the corroborating evidence as "overwhelmingly support[ing] a finding that Scott's statements

are true." (52) We do not mean to suggest by this that the jury could not rationally have

convicted the appellant even absent Springsteen's statement-quite the contrary. But a

constitutional harm analysis does not turn on whether, discounting the erroneously admitted

evidence, the remaining evidence was legally sufficient to convict. (53) Instead the question is

whether, given the state of the record as a whole, the reviewing court can say, to a level of

confidence beyond a reasonable doubt that the erroneously admitted evidence did not

contribute to the jury's verdict. (54) Especially in view of the prosecutors' final arguments, we

cannot say beyond a reasonable doubt that Springsteen's statement did not contribute to the

jury's verdict.

The Prosecutor's Final Argument

The court of appeals quoted verbatim the same portion of the prosecutor's final

argument that we have set out earlier in this opinion. (55) The only comment the court of

appeals made about the significance of that argument, however, was to say that it took up

only four out of seventy-seven pages of the State's argument in the reporter's record. This

bare observation failed to take into account the fact that practically the entire jury argument

constituted an intensive debate between the parties whether the appellant's written and oral

accounts of the offense were sufficiently corroborated by the physical evidence and other

witnesses that the jury should deem them reliable. Each side highlighted the evidence in the

record that it believed supported its position with respect to critical issues such as the locking

mechanism on the back door and the origin of the fire. They argued pro and con the

reliability of the witnesses who provided independent corroboration, and the significance of

the false confessions. They debated the suggestibility, vel non , of the detectives's

interrogation techniques. Along the way the prosecutors mentioned Springsteen's statement

several times, as we have summarized already.

To punctuate its argument, the State emphasized the importance of Springsteen's

statement to its case. The lead prosecutor pointedly reminded the jury that both the appellant

and Springsteen had independently provided to police information about throwing up over

a bridge after the offense, and reading a newspaper account in the stolen SUV the next day.

He urged the jury to accept the veracity of the appellant's statement with regard to the back

door of the yogurt shop because Springsteen, without prompting, said the "same thing in

West Virginia the next day." He emphasized that Springsteen could accurately describe the

posture in which they had left Amy's body. And perhaps mostly importantly, he reiterated

that Springsteen knew the most closely guarded "hold-back" fact, that the second gun used

to kill Amy had been a .380 caliber weapon. He invited the jury to take its time deliberating,

but to resolve whatever doubt it might have about the reliability of the appellant's statements

by comparing them to Springsteen's. We cannot say to a level of confidence beyond a

reasonable doubt that the jury did not do just that during its two days of deliberations. (56) We

hold that the court of appeals erred in failing to conclude that there is at least a reasonable

possibility that the erroneous admission of Springsteen's statement moved the jury from a

state of non-persuasion to a state of persuasion with respect to the reliability of the

appellant's inculpatory statements, and thus contributed to its verdict.

CONCLUSION

For the reasons stated above we reverse the judgment of the court of appeals, reverse

the appellant's conviction, and remand him to the custody of the Travis County Sheriff to

answer to the indictment.

Delivered: June 6, 2007

Published

1. 453 U.S. 551 (2005).

2.

See Tex. Code Crim. Proc. art. 37.071, §§ 2(b)(1) & (g). The appellant's jury found that

there was not a probability that the appellant would commit criminal acts of violence that would

constitute a continuing threat to society.

3. 541 U.S. 36 (2004).

4.

Scott v. State , 165 S.W.3d 27, 45-51 (Tex. App.--Austin 2005). Chief Justice Law

dissented, declaring himself unable to conclude that the error was harmless beyond a reasonable

doubt. Id . at 60-63.

5.

See Tex. R. App. Proc. Rule 44.2(a) (" Constitutional Error. If the appellate record in a

criminal case reveals constitutional error that is subject to harmless error review, the court of appeals

must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable

doubt that the error did not contribute to the conviction or punishment.").

6. Because Springsteen was sentenced to death, his appeal was taken directly to this Court,

notwithstanding that the Governor later commuted his death sentence.

See Tex. Code Crim. Proc.

art. 37.071, § 2(h).

7.

Springsteen v. State , (Tex. Crim. App., No AP-74,223, delivered May 24, 2006) ( 2006 Tex.

Crim. App. LEXIS 2340 , *14-*25), cert. denied , ___ U.S. ___, 127 S.Ct. 1382 ( 2007 U.S. LEXIS

2690 , February 26, 2007).

8. During final arguments, one of the prosecutors commented, "This has been a long trial. I

think to date it has been the longest trial ever tried in this county." We do not know whether this is

an accurate observation. But no summary of the evidence is likely to completely do justice to the

length and complexity of the trial.

9. The appellant was indicted and convicted for the offense of the capital murder of Amy Ayers

by shooting her or strangling her in the course of a robbery or burglary. The jury was authorized to

convict him either as a primary actor or as a party to the offense.

10. The ligature around Jennifer's neck may have been a gag that had fallen away from her

mouth. There was no evidence suggesting she had been strangled. By contrast, Amy had been

strangled, but she was still alive when she suffered the gunshot wounds.

11. The record variously identifies this as a metal scoop and an ice scoop. The court of appeals

called it an "ice cream scoop."

Scott v. State , supra , at 33. The forensic pathologist found vaginal

abrasions that were consistent with Sarah having been sexually assaulted with the handle of this metal

scoop.

12. Jones "tentatively" identified Pierce as one of the teenage boys she had seen.

13. The defense impeached Morgan's testimony with evidence that she had a reputation for

untruthfulness. Moreover, when the police interviewed Morgan in 1998, she told them nothing about

having been to the yogurt shop the night of the offense. Morgan's credibility was debated by the

parties during their final arguments.

14. The court of appeals observed that "Scott's trial counsel spent hours cross-examining the

State's arson experts in an effort to discredit their testimony. The defense did not, however, proffer

any contradictory expert testimony." 165 S.W.3d at 40 . The latter observation is simply mistaken.

The defense

did present a qualified expert to contradict the State's arson experts, as summarized in

the text. Even the State during its final argument mentioned the appellant's expert by name as one

of the "three fire experts in this case." The State was sufficiently worried about the impact of the

appellant's expert that prosecutors devoted some considerable effort during their final arguments to

persuade the jury that it should find the State's experts more reliable.

15. Both sides featured this issue relatively prominently in their final arguments.

16. It was suggested out of the presence of the jury that, at one point, several suspects from

Mexico were aware that a .380 caliber weapon had been used during the offense, but the trial court

declined to admit any evidence of this fact, out of concern that the defensive evidence was already

straying too far afield. To compensate, the trial court ordered the State not to allude to the fact,

during its final argument, that only Springsteen's statement mentions this crucial "hold-back" fact.

Despite the trial court's ruling, the prosecutor made

two such allusions toward the conclusion of his

final argument. First he argued: "The caliber of that semiautomatic was a closely guarded fact in this

investigation, something that Mr. Springsteen knows." When the appellant objected that this

mischaracterized the evidence, the trial court merely instructed the jury to take the evidence from the

witness stand, not from the attorneys. Since the evidence showed that Springsteen apparently did

know the precise caliber of the second weapon, there is no reason to believe that the jury would not

have credited the prosecutor's comment. Later, at the end of his argument, the prosecutor returned

to this theme, again without objection: "Robert Springsteen said it's a silver .380. That information

was a closely guarded fact in this investigation. Robert Springsteen knows the answer to that

question."

17. The defense presented a forensic psychologist who was an expert on memory who told the

jury that this is not, in fact, how the process of memory works at all, and that to suggest such a thing

during an interrogation is as likely to trigger false as it is accurate recall. He also testified that, while

revivification is an acceptable therapeutic technique, it is not a reliable forensic tool, and can even

create false memories.

18. The defense expert contended that this tactic was just as likely to evoke false memory as true

memory.

19. During the course of the appellant's interviews, he frequently complained to the detectives

that he did not know whether what he was telling them constituted accurate memory or just his best

guess as to what they wanted him to say.

20. The next morning when the interrogation continued, the appellant claimed to remember that

Springsteen had shown him a .38 caliber automatic with a round handle.

21. One of the detectives immediately asked, "All the way open?" The appellant replied, "All

the way open. And that's what decided it. They would go in the front. We would meet them out

back with the car." Later the appellant changed his story, insisting the door was open, but "[n]ot real

far." "I thought it was propped all the way open. But that doesn't make sense." He could not

remember what it was propped open

with , or even if it was propped open at all.

22. "Michael, do you see what you are doing? You're still minimizing your involvement in this

thing. Why are you doing that? It's just going to fuck you."

23. Later in the day the appellant would place this event more toward the

end of the incident, and

he would assert that Springsteen also slapped the girl. He still could not say which girl it was.

24. None of the girls was found behind the counter, nor did the forensic evidence suggest that

any of them had been shot there.

25. Heretofore, the appellant had not volunteered that he had helped to tie the girls up. Instead,

just before this colloquy, the detective had observed that Springsteen would not have been able to

tie them up by himself. The appellant had responded, "I don't remember if I helped him or not."

Asked then whether he "might have," the appellant had replied, "I guess I did."

26. Presumably he meant the .38 caliber revolver he had earlier told the detectives that Pierce had

taken into the yogurt shop. Later, the appellant would describe Pierce's gun as "either a 22 or a 38.

That's all I can remember. But I keep thinking it was a 38 revolver." A new detective, who had not

previously been in on the interrogation, then erroneously commented, "You think? You've been

saying 22 all along, from what I understand."

27. At this point the appellant once again remarked, "I don't remember doing any of this shit."

28. One of the detectives testified that the appellant had suddenly remembered these additional

facts as they were talking at the site.

29. Note the plural form here. It was not until his written statement that the appellant asserted

that there had only been one key in the door.

30. There was no physical evidence to verify that the girls' feet were bound.

31. One of the detectives asked the appellant if he had raped the same girl that Springsteen had

raped. The appellant replied that he had. The detective immediately asked, "Or was it another one?

Was it the same one, or was it another one, Michael?" The appellant responded, "It was another one.

No- I don't want to contradict myself. Yes, it was a different one, but I don't remember the face."

At first he claimed it was a dark-haired girl. Later he thought it "had to have been the blond."

A short time later the appellant stated that he shot the same girl he raped, and that he had shot

her in the face. None of the girls was shot in the face. The detectives registered scepticism, and

asked the appellant, "What part of the head did you put the gun, Michael?" After further questioning,

the appellant amended his story, telling them, "I remember I shot her in the head."

32. One of the detectives admitted during his testimony that he was hoping to obtain an

admission with respect to the metal scoop, but that the appellant never mentioned it.

33. When the detectives returned to this subject later, the appellant guessed it had been a bra that

he had used to gag one of the girls. When they continued to press him, again using visualization

techniques to try to enhance his recall, he claimed he had used a "white Terri-cloth towel." He could

not say what the other girls had been gagged with. The evidence shows that three of the girls were

gagged, but with socks rather than towels.

34. Springsteen did not give police a written confession. A transcript of Springsteen's police

interrogation was admitted into evidence, but for record purposes only. The jury heard only those

portions of his statement as were paraphrased in summary form by the detective, as appears in the

text,

post .

35. The prosecutor argued:

Shawn Smith confesses and said, I stood around while Justin and Lorrie and

Robert did this murder. Okay. We go talk to those three and they are like, I didn't

do it and I have an alibi. Michael Scott. I did this crime with Robert Springsteen.

Well, let's go talk to Robert Springsteen. Well, you know what? Robert Springsteen

says, hey, I did it too. There you go. Big Difference.

36.

Scott v. State , supra , at 39-41.

37.

Id . at 48-51.

38.

Id . at 48.

39.

Id . at 51.

40.

Id . at 48-49.

41.

Id . at 49.

42.

Id .

43.

Id . at 49-51.

44.

Davis v. State , 203 S.W.3d 845, 852 (Tex. Crim. App. 2006).

45.

Scott v. State , supra , at 48, citing , inter alia , Harris v. State , 790 S.W.2d 568, 587 (Tex.

Crim. App. 1989).

46.

Harris v. State , supra .

47.

Id .

48.

Davis v. State , supra , at 852-53, quoting Wesbrook v. State , 29 S.W.3d 103, 119 (Tex. Crim.

App. 2000).

49. Tex. R. App. Proc. Rule 44.2(a);

Chapman v. California , 386 U.S. 18, 24 (1967); Davis

v. State , supra , at 852-53.

50.

See note 26, ante .

51.

Scott v. State , supra , at 49 ("Under the circumstances, Scott's accurate description of the

fire's origin could not be the product of intentional or unintentional police suggestion. And it was

very unlikely that it was simply a guess.").

52.

Scott v. State , supra , at 51.

53.

Satterwhite v. Texas , 486 U.S. 249, 258-59 (1988).

54.

Id .

55.

Scott v. State , supra , at 49-51.

56. In many circumstances, admission of a co-defendant's confession might be damaging to a

defendant's case even when, as here, his own confession is also admitted against him. In

Cruz v. New

York , 481 U.S. 186 (1987), the Supreme Court addressed the question whether, in a joint trial, a jury

instruction limiting the jury's use of a codefendant's confession would be sufficient to protect the

defendant's Sixth Amendment confrontation rights. New York contended that the rule of Bruton v.

United States , 391 U.S. 123 (1968), should not apply in a case in which the defendant's own

confession, which corroborated that of his co-defendant, was admitted against him. In that event,

New York argued, the defendant's own confession did the major damage, and there would be no

reason to question the efficacy of an instruction to the jury not to also consider the codefendant's

statement against him. The Supreme Court disagreed, observing along the way:

A codefendant's confession will be relatively harmless if the incriminating story it tells

is different from that which the defendant himself is alleged to have told, but

enormously damaging if it confirms, in all essential respects, the defendant's alleged

confession. It might be otherwise if the defendant were standing by his confession,

in which case it could be said that the codefendant's confession does no more than

support the defendant's very own case. But in the real world of criminal litigation,

the defendant is seeking to avoid his confession-on the ground that it was not

accurately reported, or that it was not really true when made.

481 U.S. at 192 . In the present case, the prosecutor urged the jury to resolve any doubts the

defendant may have generated about the reliability of his own written statement by noting its

similarities to Springsteen's statement. Because such a use of a codefendant's statement is as

damaging under these circumstances as it would be in a joint trial, as in Cruz , we are unable to

conclude beyond a reasonable doubt that it was harmless.