Hughes v. State

KELLER, J.,

filed this dissenting opinion.

Although the statements at issue here were admitted on an impeachment theory, an appellate court must uphold a trial court’s ruling on any theory of law applicable to the case. Jones v. State, 982 S.W.2d 386, 389 (Tex.Crim.App.1998); Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). If the statements were admissible under a hearsay exception, then the trial court’s decision to admit the evidence would be correct, albeit on a different theory of law than contemplated by the trial court. The Court of Appeals found that the evidence constituted proper impeachment, however, and never reached the issue of whether the evidence was admissible under a hearsay exception. The majority finds that the Court of Appeals erred in holding the evidence admissible as impeachment, and further finds that no hearsay exception applies. As a result, the majority concludes that it was error to admit the evidence. The majority remands the case for a harm analysis. While I agree that the statements at issue in the present case were not admissible under an impeachment theory, 1 1 find that there is indeed an applicable hearsay exception.

The statements at issue in the present case are “out of court” on two levels:

1. They constitute appellant’s statements to his wife, and

2. They constitute appellant’s wife’s statements to the social workers.

The statements do not technically fall within the “hearsay within hearsay” rule because appellant’s statements are party-opponent admissions, which are defined as “not hearsay.” Rule 801(e)(2)(A). Nevertheless, the problem is analytically the same as a hearsay within hearsay problem. Regarding “hearsay within hearsay” the rules provide:

*8 Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

Rule 805. 2 The testimony of the social worker must be justified on two levels: (1) as to appellant’s statements, and (2) as to the wife’s statements.

Because appellant’s statements to his wife are clearly party-opponent admissions, which are defined as not hearsay under the rules, the first level may be easily dispensed with. The applicable rule provides: “A statement is not hearsay if ... [t]he statement is offered against a party and is his own statement.” Rule 801(e)(2)(A). Had appellant’s wife testified in court about appellant’s statements, those statements would have been admissible as party-opponent admissions.

The next question is whether the social worker could testify about the wife’s out of court statements. The wife’s statements fall within a hearsay exception — statements against interest. The rules provide that statements that tend to subject the declarant to criminal liability are admissible so long as corroborating circumstances clearly indicate the trustworthiness of the statements:

A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declar-ant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Rule 803(24). In the present case, the wife’s statements tended to subject her to liability for failing to report child abuse, a Class B misdemeanor. See Texas Family Code § 261.109. 3 The wife’s statements indicated that appellant’s abuse of the child had been continuing and that the abuse occurred multiple times after appellant promised his wife that he would stop. By acknowledging that she had been aware of continuing abuse, she subjected herself to liability for not reporting that abuse. And in fact, appellant’s wife was charged with that offense at the time the trial court gave her “use immunity” in exchange for her testimony at appellant’s trial. The majority contends that, while general statements by the wife to social workers concerning her knowledge of abuse qualify as statements against interest, her statements regarding appellant’s admissions of guilt do not. However, the fact that appellant confessed his guilt to his wife shows his wife’s knowledge of the abuse (because he confessed it to her), and that knowledge is incriminating because she failed to report what she had learned.

The record also shows corroborating circumstances. The social worker testified that the wife was not in custody and that her statements were voluntarily given. Moreover, the social worker had previously interviewed the children, and the wife’s testimony was consistent with the children’s allegations. See Green v. State, 840 S.W.2d 394, 412 (Tex.Crim.App.1992), cert. denied, 507 U.S. 1020 , 113 S.Ct. 1819 , 123 L.Ed.2d 449 (1993)(other witnesses identified the defendant at the time of the murder and only defendant’s fingerprints were on the murder weapon).

That the trial court subsequently granted the wife immunity does not alter the *9 above analysis. The wife’s statements, at the time they were made, subjected her to criminal liability.

I would affirm the judgment of the Court of Appeals. I respectfully dissent.

. But I would so hold for different reasons than those announced by the majority. A witness’ mere denial that she heard another person make an incriminating statement does not, on its own, constitute substantive evidence (having no tendency to prove a fact of consequence), and hence, cannot supply a predicate for impeachment.

. All references to rules are to the Texas Rules of Criminal Evidence in effect at the time of trial unless otherwise specified.

. The offense provides: "A person commits an offense if the person has cause to believe that a child’s physical or mental health or welfare has been or may be adversely affected by abuse or neglect and knowingly fails to report as provided in this chapter." Texas Family Code § 261.109(a).