Miles v. State

BAIRD, Judge,

concurring.

In points of error six and seven, the Court holds the trial judge erred in admitting the testimony of Robert Louis Peterson which related the hearsay statements of Tyrone Holden. The Court begins its Tex.R.Crim.Evid. 803(24) analysis by determining whether the statements were inculpatory. This analysis is consistent with Davis v. State, 872 *518 S.W.2d 743, 747 (Tex.Cr.App.1994) (“The first inquiry under ... Rule 803(24) is whether the statement tended to expose the declar-ant to criminal liability.”). Utilizing this analysis, the Court holds the statement of Holden was not admissible “because the person making the statement (Holden) was not inculpating himself.” Ante at 515 [emphasis added]. Because I fear this holding may be misconstrued, notwithstanding n. 7, ante at 515, to mean that had Holden inculpated himself, his statement would have been admissible, I write separately to hopefully avoid any future confusion on the admissibility of statements against interest.

The State may never utilize Rule 803(24). Instead, the rule works as a one-way street for the defendant. A defendant may offer statements against interest to establish that another admitted commission of the offense or to establish a defense. See e.g., Davis, 872 S.W.2d 743 ; and, Cunningham v. State, 877 S.W.2d 310 (Tex.Cr.App.1994). This is so because due process commands that a defendant must be permitted to establish that the offense for which he is charged was committed by another or that the defendant has a defense to the charged offense.

This is not to say that statements against interest are not admissible when offered by the State. Indeed, such statements are admissible under three separate theories. First, such statements made by the defendant on trial are not hearsay and are admissible. Tex.R.Crim.Evid. 801(e)(2) and Tex. Code Crim.Proc.Ann. art. 38.21. 1 Second, statements made by co-defendants in the course of or furtherance of a conspiracy are not hearsay and are admissible. Tex.R.Crim.Evid. 801(e)(2)(E). See generally, Denney v. State, 558 S.W.2d 467, 469 (Tex.Cr.App.1977); Deeb v. State, 815 S.W.2d 692 (Tex.Cr.App.1991); and, Ward v. State, 657 S.W.2d 133 (Tex.Cr.App.1983). Otherwise, statements against interest made by co-defendants are not admissible, Deeb, supra, because such statements violate the Confrontation Clause of the Sixth Amendment. Cruz v. New York, 481 U.S. 186 , 107 S.Ct. 1714 , 95 L.Ed.2d 162 (1987); Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968); and Lee v. Illinois, 476 U.S. 530 , 106 S.Ct. 2056 , 90 L.Ed.2d 514 (1986). See, Davis, 872 S.W.2d at 748, n. 11. 2 Third, such statements may be used by the State to impeach a witness. Tex.R.Crim.Evid. 612. 3 Consequently, although the State may not utilize Rule 803(24) to offer statements against interest, such statements may nevertheless be admissible.

In the instant case, the statements Holden made to Peterson do not fall within any of *519 the aforementioned three categories for the admission of such statements by the State. Consequently, the statements constituted inadmissible hearsay. For these reasons I agree that points of error six and seven must be sustained.

With these comments, I join the opinion of the Court.

.Tex.R.Crim.Evid. 801(e) Statements Which Are Not Hearsay. A statement is not hearsay if:

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(2) Admission by parly-opponent. The statement is offered against a party and is (A) his own statement in either his individual or representative capacity or (B) a statement of which he has manifested his adoption or belief in its truth, or (C) a statement by a person authorized by him to make a statement concerning the subject, or (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party dim-ing the course and in furtherance of the conspiracy.

To the extent Green v. State, 840 S.W.2d 394, 411-412 (Tex.Cr.App.1992), indicates the statements of a defendant to a cell-mate were hearsay but admissible under Rule 803(24), it should be disavowed.

Tex.Code Crim.Proc.Ann. art. 38.21 provides:

A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion, under the rules hereafter prescribed.

. McFarland v. State, 845 S.W.2d 824, 835 (Tex.Cr.App.1992), should be overruled to the extent it holds non-conspiratorial statements of accomplices are admissible under Rule 803(24).

. Tex.R.Crim.Evid. 612(a) Examining Witness Concerning Prior Inconsistent Statement. In examining a witness concerning a prior inconsistent statement made by him, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement. If written, the writing need not be shown to him at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted. This provision does not apply to admissions of a party-opponent as defined in Rule 801(e)(2). See, n. 1, supra.