Opinion
No. 2-02-272-CR.
Delivered November 20, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from County Criminal Court No. 7 of Tarrant County.
Attorney(s) for Appellant: Abe Factor; Factor, Campbell Shepherd, L.L.P., of Fort Worth, TX. Attorney(s) for Appellee: Tim Curry, Crim. Dist. Atty., Charles M. Mallin, Helena F. Faulkner, Michael S. Gordon, and Andrew Graves, Asst. Crim. Dist. Attys. of Fort Worth, TX.
Before Panel B: DAUPHINOT, GARDNER, and WALKER, JJ.
OPINION
A jury convicted Appellant Kevin Wayne Rose of driving while intoxicated, and the trial judge assessed punishment at 120 days in jail, probated for two years, and a fine of $500. Appellant brings a single point on appeal challenging the trial court's admission of a hearsay statement made by a non-testifying passenger. Because the trial court reversibly erred in admitting the complained of statement, we reverse the trial court's judgment and remand this case for a new trial.
I. Factual Background A. The Driver — Appellant
City of Watauga Police Officer Steven Wallace pulled Appellant over for traveling thirty-five miles per hour in a thirty-mile-per-hour zone and for failing to observe two stop signs. Wallace testified that when Appellant exited his car, he staggered and swayed. He also claimed that Appellant had a strong odor of alcohol on his breath and that his eyes were watery, dilated, and bloodshot. When asked if he had been drinking, Appellant responded, "Not that much." At trial, Appellant testified that he had had two beers. Wallace testified that at the scene, Appellant performed and failed the walk-and-turn and one-legged-stand field sobriety tests. Officer Sam Nance, who had arrived as back-up, testified that he also observed Appellant do the walk-and-turn portion of the field sobriety tests from a distance, but that he could not determine whether Appellant was intoxicated. Wallace, who arrested Appellant after he completed the field sobriety tests, testified that Nance had nothing to do with Appellant's case. The only alcohol found in the car was an open beer can that both officers testified belonged to the passenger, Allen Huddleston. At the police station, Appellant refused to provide a sample of his breath and again performed the walk-and-turn and one-legged-stand tests on videotape, which was later played to the jury. Wallace admitted that Appellant performed fairly well, but he insisted that Appellant had not performed so well in the field and that he was justified in jailing Appellant for driving while intoxicated. Appellant claimed that he made no mistakes on the tests taken at the police station.B. The Passenger — Huddleston
Officer Nance testified that at the scene, he opened the car's front passenger door and told the passenger, Huddleston, to get out of the car for officer safety. Huddleston had a beer can in his hand, smelled of alcohol, and stumbled a little. Nance claimed that Huddlestonjust started uttering words. We have been drinking all night at the driver's house and could his wife come and get us. . . . He said they'd been drinking all night and that they were over at the driver's house, and they were out driving around, test driving the new car, and if we could just call the driver's wife to come pick them up.Nance further testified that Huddleston said they had been drinking beer all night at Appellant's house. Wallace, not Nance, instructed Huddleston to perform field sobriety tests, which he failed. Huddleston was then arrested for public intoxication. Nance admitted that he did not write a report or take any notes concerning Appellant's case. He "didn't write one scrap of paper about [Huddleston's admission] in [the] report." He also testified that he had no memory of telling Officer Wallace about the statements he claimed Huddleston made to him, and he did not think that he did tell Wallace. Wallace, who testified before Nance, also claimed that Huddleston had an open beer can in his lap, but Wallace was not questioned about whether Nance had reported Huddleston's alleged admission to him. Nance claimed that the incident had occurred two years earlier, and he "didn't remember that comment that that man made until I heard him [Huddleston] on the tape today. . . . When I heard it on the tape." Not only did Nance neglect to record the statement, take notes about the statement, or mention the statement to the officer in charge of the case, he did not reveal the existence of the statement to the prosecutors until the morning he testified. Consequently, Appellant's lawyer did not learn of the purported statement until that time, even though he had specifically requested all statements pretrial. Huddleston was not present at trial. Instead of calling him as a witness, the State offered the out-of-court statement Nance claimed Huddleston made to him two years earlier. Appellant does not challenge either the legal or factual sufficiency of the evidence. Instead, his sole challenge focuses on the admission of the out-of-court statement.
II. Statement against interest
Appellant claims that the admission of the statement violated his right of confrontation guaranteed by the Sixth Amendment to the United States Constitution. He further claims that the hearsay statement does not qualify as a statement against interest under Texas Rule of Evidence 803(24). Finally, he claims the admission of the statement harmed him. In all criminal prosecutions, the accused has a right "to be confronted with the witnesses against him." "The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Generally, abrogation of a criminal defendant's right to cross-examine witnesses is a denial of due process of law under the Fourteenth Amendment. 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." The admission of hearsay evidence against a criminal defendant implicates the Confrontation Clause of the Sixth Amendment because the defendant is not afforded the opportunity to confront the out-of-court declarant. To avoid a violation of the Confrontation Clause, hearsay evidence must fall within a firmly rooted hearsay exception or must contain particularized guarantees of trustworthiness such that cross examination would probably add little, if anything, to the reliability of the evidence. The United States Supreme Court has held that confessions of another person that incriminate the defendant on trial, even though self-inculpatory to the declarant, are presumptively unreliable and "fall outside the realm of" firmly rooted hearsay exceptions. The right of confrontation is a fundamental guarantee and a cornerstone of due process of law. This valuable right will not be dispensed with unless the circumstances of the hearsay evidence are such that confrontation and cross examination of the declarant would do nothing to undermine the reliability of the evidence. This is a grave burden for the State. Huddleston's statement concerning his and Appellant's drinking all night was inadmissible hearsay unless it satisfied a hearsay exception. The State offered Nance's testimony regarding Huddleston's statement as a declaration against interest under rule 803(24) of the Texas Rules of Evidence. That rule provides that in a criminal case, a "[a] statement which . . . so far tended to subject the declarant to civil or criminal liability . . . that a reasonable person in declarant's position would not have made the statement unless believing it to be true" will not be excluded from evidence under the hearsay rule as long as "corroborating circumstances clearly indicate the trustworthiness of the statement." An appellate court reviews the trial court's decision to admit evidence of a statement against interest under an abuse of discretion standard of review. A trial court's ruling will not be reversed as long as it is within the zone of reasonable disagreement. The Court of Criminal Appeals has set forth a two-part test regarding the admissibility of statements against interest. First, the statement must expose the declarant to criminal liability. Second, corroborating circumstances must clearly indicate the trustworthiness of the statement. The Court of Criminal Appeals has further set forth factors that may be considered when verifying the trustworthiness "to avoid the admissibility of a fabrication." Those factors include: whether the guilt of the declarant is inconsistent with the guilt of the accused; whether the declarant was so situated that he might have committed the crime; the timing of the declaration and its spontaneity; the relationship between the declarant and the party to whom the declaration was made; and the existence of independent, corroborative facts. Huddleston's statement sufficiently tended to expose him to criminal liability to satisfy the first prong of the test for admissibility of statements against interest. A person commits the offense of public intoxication if he appears in a public place while intoxicated to the degree that he could endanger himself or another. Case law has established that the interior of a vehicle on a public street or road can be a public place. Appellant relies on Guidry v. State for the proposition that Huddleston's statement was inadmissible because it did not inculpate Huddleston to the same degree that it inculpated Appellant. The State argues that Guidry is inapplicable because neither party argues that Huddleston was Appellant's accomplice or co-defendant, and Huddleston was arrested for public intoxication, not as a party to driving while intoxicated. Second, the State argues, Huddleston's statement could not be seen as an attempt to shift blame for the offense of driving while intoxicated from himself to Appellant and was not an attempt to exculpate himself in any way. From our perspective, Guidry concerns not the first prong of the test, exposure to criminal liability, which we do not see as an issue in this case, but the second prong, the reliability and trustworthiness of the statement. The appellant's complaint in Guidry, which involves co-defendants, was that a number of Prystash's statements to Gipp incriminated Guidry as well as Prystash. Guidry argued that to qualify as a statement against interest under rule 803(24), the statement must be against the declarant's interest. Thus, he maintained, the portions of Prystash's statements that implicated Guidry were not admissible as statements against Prystash's interest. The Court of Criminal Appeals agreed, and stated,We have recognized that Rule 803(24) "provides for an exception to the hearsay rule for a statement against the declarant's interest [, but] . . . does not provide a hearsay rule exception for a declarant's statement which is against someone else's interest, e.g. a third-party, a co-actor, or a co-defendant." Cofield v. State, 891 S.W.2d 952, 955 (Tex.Crim. App. 1994). That is, unless the statement against the third party's interest is also sufficiently against the declarant's interest as to be reliable. For example, in Dewberry v. State, 4 S.W.3d 735, 744-45 (Tex.Crim.App. 1999), statements in which the declarant ("Chris") incriminated both himself and the defendant, jointly, were held sufficiently reliable:
The State was careful to elicit accounts only of statements made by Chris referring to "we," which included both him and appellant. An admission against a co-defendant declarant's interest can be admissible against the defendant so long as it is sufficiently against the declarant's interest to be reliable. [citation omitted] Because Chris's statements containing "we" implicated him in the capital murder of Rode, this Court concludes that his statements were sufficiently self-inculpatory to be reliable[.]
The statements made by Prystash in the instant case are not so equally against both Prystash's and appellant's interests as reach this level of reliability. While some of Prystash's statements refer to "we," meaning both himself and appellant, on the critical issue of who killed the victim, Prystash's statements inculpate appellant alone as the triggerman and describe with specificity how "appellant" killed the victim. Prystash told Gipp he just dropped appellant off at the victim's residence and picked him up after appellant had committed the murder. Granted both driver and triggerman bear potentially equal criminal liability, but the driver might be in a better bargaining position should he decide to cooperate with the State, and the driver might have a better chance at gaining sympathy from the jury. Because Prystash's statements so clearly delineate his and appellant's roles on the critical issue of who killed the victim, we hold the statements made by Prystash which were against appellant's interest were not admissible under Rule 803(24).
Thus, Gipp's testimony in which she described Prystash's statements against his own interest was admissible under the Rules of Evidence, while the testimony relating Prystash's statements against appellant's interest was not admissible under the Rules.The question, then, is whether Huddleston's statement, as reported by Nance, that "they" had been drinking all night at Appellant's house was sufficiently reliable to satisfy the second prong of the test for admitting statements against interest. The facts of the case now before this court are similar to those in Cofield v. State. In Cofield, the Court of Criminal Appeals held that the hearsay exception for statements against penal interest did not apply to permit the use against the defendant of a statement by the passenger to the arresting officer that both the passenger and the defendant had smoked cocaine immediately before their arrest. Although the statement exposed both passenger and defendant to criminal liability, the statement might have been made to curry favor with the police, and the passenger's guilt may have been inconsistent with the guilt of defendant. Rule 803(24) requires sufficient corroborating circumstances to indicate the trustworthiness of the statement at issue. While the State argues that the independent evidence of intoxication provided the necessary corroboration, we do not agree. We hold that Huddleston's guilt could be inconsistent with Appellant's, that Huddleston could have been attempting to curry favor with the police, and that the independent evidence does not corroborate Appellant's guilt. We have carefully and repeatedly viewed the videotapes of Appellant's arrest, field sobriety tests, and tests conducted at the police department. There is no evidence of the staggering and swaying that Officer Wallace claimed occurred when Appellant exited his car. Nor does the videotape contain any audible statement regarding drinking all night that Officer Nance claimed he heard on the videotape that reminded him of Huddleston's purported statement against interest. Although Huddleston appears and speaks on the videotape, no such statement that Nance reported at trial can be heard on the tape. We are mindful that the Court of Criminal Appeals in Bingham stated that "evidence which undermines the reliability of the statement as well as evidence corroborating its trustworthiness may be considered, so long as the Court is careful not to engage in a weighing of the credibility of the witness." We specifically do not weigh the credibility of Officer Nance who claimed to hear Huddleston's statement on the video and suddenly remember, after two years, a statement that he never mentioned or made note of. Rather, we limit ourselves to determining whether the statement is sufficiently corroborated to be trustworthy. We note that if both Huddleston and Appellant had been drinking all night, presumably Appellant would have been substantially more intoxicated than the videotapes reveal. Yet Appellant's degree of intoxication, if any, was so slight that even Wallace admitted that Appellant showed little or no signs of intoxication while performing the field sobriety tests at the police station. Officer Wallace claimed that he smelled beer on Appellant and that Appellant's eyes were dilated, watery, and bloodshot. This condition was not visible to us in examining the tape. Appellant testified that he had had two beers that evening. Officer Nance testified that Huddleston was holding a can of beer when he asked him to get out of the car. Nance also testified that Huddleston said that "they" had been drinking all night. Nance's testimony implied that "they" were Huddleston and Appellant, but other testimony in the case revealed that both men and their wives had been at a party that night. Huddleston clearly failed the field sobriety tests. Nance claimed that Huddleston admitted that "they" had been drinking all night in the context of asking to be allowed to go home. It is not clear that Huddleston understood that he could be arrested for public intoxication. It is clear, based on Nance's testimony, that Huddleston was trying to convince him to let him call one of the wives to pick him up. That is, Nance's testimony makes clear that Huddleston was asking Officer Nance for consideration — a favor. Weighing all the evidence, and applying the appropriate tests, we hold that the State failed to sustain its burden as to the reliability prong of the test for admissibility of a statement against interest. The statement lacks the indicia of reliability to support admissibility; therefore, its admission before the jury was an abuse of discretion. Further, the trial court's admission of this hearsay statement into evidence when it lacked all safeguards of trustworthiness violated Appellant's right to confront the witness against him, in violation of the guarantees of the Sixth Amendment to the Constitution of the United States.