No. 01-08-00010-CR
Opinion issued January 8, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 182nd District Court Harris County, Texas, Trial Court Cause No. 1096823.
Panel consists of Chief Justice RADACK and Justices HIGLEY and NUCHIA.
Justice Sam Nuchia, who retired from the First Court of Appeals on January 1, 2009, continues to sit by assignment for the disposition of this case, which was submitted on December 9, 2008.
SHERRY RADACK, Chief Justice.
Appellant, Joshua Ray Juarez, pleaded not guilty to the offenses of the capital murder of Deborah and Lucy Maloney. A jury found him guilty. The trial court assessed punishment at life in prison and certified appellant's right to appeal. Appellant presents three points of error, all of which challenge evidentiary rulings by the trial court. We affirm.
Background Facts
On December 13, 2006, at about 11 a.m., Houston Police officers who responded to a 911 emergency call found Deborah and Lucy stabbed to death in an apartment that adjoined appellant's apartment. There were signs of a struggle, and both women were lying in pools of blood. Each woman had sustained multiple, deep stabbings as well as broken bones. Police later learned from family members that the Maloneys' car was missing. At 10:45 a.m. on December 13, 2006, appellant arrived by car at the apartment of a friend who lived in a nearby apartment complex. While at the friend's apartment, appellant directed his friend's attention to a car outside in the parking lot, and he told the friend and her male visitor that he had stolen the car from his neighbor. Appellant later told his friend's male visitor that he had killed the neighbor and another person by stabbing them. Appellant asked the male visitor for help to dispose of some clothing, but the visitor refused. The friend and her visitor later relayed to police the substance of both conversations with appellant. Police located the Maloney car in the parking lot where appellant had pointed out the car to his friend and her visitor. Police were able to lift DNA evidence from the steering wheel and the gearshift knob and to obtain scent from the steering wheel and driver's seat of the car. The officers used police bloodhounds to track the scent over three and a half miles to appellant's apartment complex. A bloodhound approached the Maloney apartment first and then approached appellant's apartment. After interviewing appellant's immediate neighbors, police learned that appellant had knocked on the door of Ryan Smith, at about 9:30 a.m. on the morning of the murders. Smith explained that he felt uneasy and did not open the door, but that he saw appellant approach the Maloney apartment. Smith also confirmed that his dog Becker soon began "crazy barking" and that the hair on the back of Becker's neck stood up. When Smith took Becker outside, the dog continued barking while directing its attention to the Maloney apartment. While at the home of a friend later on the day of the murders, appellant was speaking with the friend's mother, Lessa Sheppard, whom he sometimes called "mom," and asked her "how [she] would feel toward him if the police said that he had killed the two ladies." When police interviewed Sheppard the next day, she reported to them what appellant had said. Sheppard also told the officers that appellant had been acting strange while speaking with her and told her that police might be looking for him. Appellant provided two statements to police detectives after his arrest. In the first statement, appellant claimed that he acted as only an accomplice to a murder committed by someone else. Appellant claimed that he provided the knife used in the murders and the means of gaining entry to the Maloney apartment and that he acted as the lookout for the murderer. In the second statement, appellant told officers where he had discarded the keys to the Maloney car; he also admitted cutting the telephone cord in their apartment so that they could not seek help. Standard of Review
An appellant who contends that the trial court erred by admitting evidence must preserve error by obtaining a ruling that this Court may review. See Tex. R. App. P. 33.1; Tex. R. Evid. 1.03. We review rulings admitting evidence claimed to be hearsay for abuse of discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). A trial court abuses its discretion when it so deviates from applicable guidelines and principles that the decision is considered outside the zone of reasonable disagreement. See id. A defendant's right to confront and cross-examine the witnesses against him, pursuant to the Confrontation Clause of the U.S. Constitution's Sixth Amendment, is not implicated if a hearsay statement is nontestimonial in nature. Woods v. State, 152 S.W.3d 105, 113-14 (Tex.Crim.App. 2004) (citing Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004)). Statements that are testimonial in nature include "`prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and [in response to] police interrogation'"; casual remarks made spontaneously to acquaintances are not testimonial. See id. (quoting and citing Crawford, 541 U.S. at 68, 124 S. Ct. at 1374). If the statement in question falls within a firmly rooted hearsay exception, reliability can be inferred, and the statement may be found to be per se reliable for Confrontation Clause analysis. Guidry v. State, 9 S.W.3d 133, 149 (Tex.Crim.App. 1999); see Crawford, 541 U.S. at 67-68, 124 S. Ct. at 1372-74 (suggesting that otherwise reliable nontestimonial hearsay falls outside scope of Sixth Amendment's Confrontation Clause). Testimony of Lessa Sheppard
In his first point of error, appellant contends that the trial court erred by admitting Lessa Sheppard's testimony that appellant asked her "how [she] would feel towards him if the police said that he had killed the two ladies." Appellant argues that the trial court improperly admitted this evidence under the exception to the hearsay rule for a statement against interest, see Tex. R. Evid. 803(24), and that admitting the evidence violated appellant's Sixth Amendment right of confrontation. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is inadmissible except as provided by statute or rules prescribed pursuant to statutory authority. Tex. R. Evid. 802. A hearsay statement against a person's interest may be properly admitted, by exception, if the statement was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability . . . or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant's position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. Tex. R. Evid. 803(24). The first inquiry required by rule 803(24) is whether the statement tended to expose the declarant to criminal liability. Davis v. State, 872 S.W.2d 743, 747 (Tex.Crim.App. 1994). The second inquiry asks whether corroborating circumstances clearly indicated the trustworthiness of the statement. See Tex. R. Evid. 803(24); Woods, 152 S.W.3d at 113. A hearsay statement is admissible under rule 803(24) if it satisfies both of these inquiries. Id. There is no definitive test by which to assess corroborating circumstances for purposes of rule 803(24), but the burden to produce evidence that clearly indicates trustworthiness is on the party who seeks to admit the statement, in this case, the State. See Davis, 872 S.W.2d at 749. A number of factors can guide the trial court in deciding whether the circumstances show that a statement is trustworthy, including the following: (1) whether the guilt of the declarant is inconsistent with the guilt of the defendant, (2) whether the declarant was so situated that he or she might have committed the crime, (3) the timing of the declaration, (4) the spontaneity of the declaration, (5) the relationship between the declarant and the party to whom the statement was made, and (6) the existence of independent corroborating facts. Woods, 152 S.W.3d at 113; Dewberry v. State, 4 S.W.3d 735, 751 (Tex.Crim.App. 1999). We do not apply the first two factors in this case because the statement was not one by which appellant sought to escape culpability, but one on which the State relied. See Woods, 152 S.W.3d at 113 ("The first two factors . . . logically apply only when the defendant is the proponent of the statement against interest that tends to exculpate the defendant."). Like this case, Woods was an appeal from a conviction for the murder of two individuals. Id., 152 S.W.3d at 108. The defendant argued on appeal that statements made by his codefendant to two acquaintances were not admissible as statements against interest under rule 803(24). The Court of Criminal Appeals held that the trial court had properly allowed both witnesses to testify because sufficient corroborating circumstances indicated their trustworthiness. Id. at 113-14. Appellant's question to Sheppard, in which he asked "how [she] would feel towards him if the police said that he had killed the two ladies," satisfies the first inquiry under rule 803(24). Though hypothetical, the question was self-inculpatory and against appellant's self-interest. In addition, the record presents several corroborating circumstances that indicate the trustworthiness of appellant's statement to Sheppard. Appellant was a friend of Sheppard's son and a frequent visitor in the Sheppard home. He called Sheppard "mom"; Sheppard had known him for about four years; and their relationship was "close." The circumstances of the relationship between appellant and Sheppard tend to corroborate the trustworthiness of the statement contained in appellant's question to her. At trial, Sheppard testified that she had observed police helicopters overhead on the early afternoon of the murders and had gone to appellant's nearby apartment complex with several neighbors to investigate what had happened. While there, she saw appellant drive up with his sisters and his girlfriend. Sheppard spoke with appellant, who seemed to be acting "strange" and kept rubbing his head. Sheppard saw appellant again later that day. He arrived at the Sheppard home that evening at about 7 p.m. Appellant had not yet been charged, but spontaneously posed to Sheppard the question whose admissibility he challenges here. In addition to asking Sheppard how she would feel about him if police told her that he had killed the two ladies, appellant also told Sheppard that he "thought the police might be looking for him." Appellant's question to Sheppard here is much like the "street corner" statements in Woods, as to both spontaneity and close proximity to the murder of the women. See id. at 113. Independent corroborative facts also indicate the trustworthiness of the statement contained in appellant's question to Sheppard. Appellant had pointed out a car to two acquaintances and stated that he had stolen it from his neighbor. Appellant then told one of those acquaintances that he had stabbed both his neighbor and another person. Appellant had thus confided in another person besides Sheppard. Later that day, police located the Maloneys' car where appellant had left it. Police obtained both DNA evidence from the car and scent that police bloodhounds tracked to the Maloney apartment and then to appellant's apartment next door. On the day after the murders, appellant led police detectives to the discarded keys to the Maloney car. These independent corroborative facts further reinforce the trustworthiness of the statement against interest within appellant's question to Sheppard. Having thus concluded that appellant's question to Sheppard was properly admissible because it contained a statement against appellant's penal interest, we address appellant's contention that the statement violated his right to confront and cross-examine witnesses, as guaranteed by the Sixth Amendment. We may infer that appellant's statement is reliable without offending the Sixth Amendment because the statement falls within rule 803(24)'s well-established exception to the hearsay rule for statements against interest. See Tex. R. Evid. 803(24). In addition, the statement was not testimonial in nature, but, rather, in the nature of a casual remark spontaneously made to an acquaintance. See Woods, 152 S.W.3d at 114. As a nontestimonial remark, appellant's statement did not implicate Sixth Amendment protections. See id., 152 S.W.3d at 113-14. Accordingly, we hold that the trial court did not abuse its discretion by permitting Sheppard to testify regarding appellant's question to her. We overrule appellant's first point of error. Smith's Testimony Regarding Dog's Behavior
In his second and third points of error, appellant contends that the trial court erred by admitting Smith's testimony in which he described his dog's behavior. Appellant contends that the testimony was irrelevant and violated Rule of Evidence 403. To preserve error for review, an adverse ruling must follow a timely and specific objection. See TEX. R. APP. P. 33.1(a). To be timely, an objection must be raised at the earliest opportunity or as soon as the ground of objection becomes apparent. Martinez v. State, 867 S.W.2d 30, 35 (Tex.Crim.App. 1993). Appellant's neighbor Smith testified that his dog "was acting a little nervous . . . that day." There was no objection to that statement. The prosecutor later asked Smith, "What was different about Becker that morning? You said that he went crazy. Explain to us what happened." At that point, appellant's trial attorney objected on grounds of relevancy. There was never a rule 403 objection to the statements about the dog's behavior. We hold that appellant's relevancy objection came too late, and that he did not preserve his rule 403 objection. We overrule appellant's second and third issues. Conclusion
We affirm the judgment of the trial court.