Opinion
No. 04-02-00910-CR
Delivered and Filed: February 2, 2005. DO NOT PUBLISH.
Appeal from the 379th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CR-4923A, Honorable Bert Richardson, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
Gilbert Garcia appeals the judgment convicting him of the murder of Johnny Ballez and sentencing him to sixty years in the Texas Department of Criminal Justice — Institutional Division. We affirm the trial court's judgment. 1. Garcia first argues the trial court abused its discretion in admitting, as an adoptive admission, Albert Dillard's testimony that his cousin Nicholas whispered to him "hey, I killed — we killed somebody" at a time shortly after Ballez's murder when only four people were on a porch outside the home of one of Dillard's cousins — Dillard, Nicholas, Nicholas's sister Teresa, and Garcia. Garcia argues it is not clear that Garcia "heard the statement and either acquiesced to it or failed to contradict it"; and, even if he did, the statement "did not explicitly incriminate [Garcia], either by name or by direct inference, and thus did not clearly call for a response." See Alvarado v. State, 912 S.W.2d 199, 214 (Tex.Crim.App. 1995) (requirements for adoptive admission). We disagree. That Garcia heard and failed to contradict Nicholas's statement is implicit in Garcia responding to the statement with "shh, don't say anything." And the trial court could have reasonably concluded that Nicholas's use of the word "we" was meant to include Garcia in light of the evidence that Nicholas and Garcia stabbed Ballez at least forty-two times and Teresa helped Nicholas and Garcia wrap Ballez's body in a sheet and place it in the trunk of Ballez's car. 2. Garcia next argues the trial court abused its discretion in admitting Dillard's written statement. We again disagree. Dillard's written statement was not even offered into evidence until cross-examination, when Garcia's trial attorney asked Dillard whether, before he came to trial, he remembered Garcia saying "shh, don't say anything." Given this line of questioning, the trial court could reasonably have concluded that Garcia's trial counsel was insinuating that Dillard's testimony that Garcia had said "shh, don't say anything" was recently fabricated to correspond to his improperly prepared written statement. See Tex. R. Evid. 801(e)(1)(B) (admissibility of prior consistent statement "to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive"). See Moody v. State, 827 S.W.2d 875, 893-94 (Tex.Crim.App.), cert. denied, 506 U.S. 839 (1992). 3. Garcia next argues the trial court's admission of Nicholas's statement through Dillard denied him his Sixth Amendment right of confrontation. However, because Nicholas's statement was plainly nontestimonial in nature, the analysis in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L. Ed.2d 177 (2004) does not apply. See id. 124 S.Ct. at 1374 ("Whatever else the term ["testimonial"] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations."); id. at 1364 ("a casual remark to an acquaintance" is not testimonial); Woods v. State, No. AP-74430, 2004 WL2896253 (Tex.Crim.App. Dec. 15, 2004) ("casual remarks . . . spontaneously made to acquaintances . . . were non-testimonial"); see also Crawford, 124 S.Ct. at 1370, 1374 (leaving undecided the question whether the Confrontation Clause applies at all to nontestimonial statements and stating that "it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — as does [ Ohio v.] Roberts[, 448 U.S. 56 (1980)] and as would an approach that exempted such statements from confrontation Clause scrutiny altogether"). Absent the Crawford analysis, it is well-settled that adoptive admissions are not hearsay and their admission does not violate the Confrontation Clause. See Paredes v. State, 129 S.W.3d 530, 534 (Tex.Crim.App. 2004); Tucker v. State, 771 S.W.2d 523, 535-36 (Tex.Crim.App. 1988), cert. denied, 492 U.S. 912 (1989); see also United States v. Kehoe, 310 F.3d 579, 590-91 (8th Cir. 2002) (holding that when defendant has adopted the declarant's statement, he is effectively a witness against himself; testimony about the statement is thus not hearsay and does not violate the Confrontation Clause), cert. denied, 538 U.S. 1048 (2003); United States v. Woods, 301 F.3d 556, 561 (7th Cir. 2002) ("If the statements are [the defendant's] own — either by virtue of the fact he made or adopted them — there is no hearsay and no confrontation problem because the witness against the defendant is himself."). 4. Garcia next argues the trial court abused its discretion in admitting evidence that he fled from the officers who were attempting to execute an arrest warrant for Ballez's murder and thereafter resisted arrest and tried to take an officer's gun. We disagree. The trial court could have reasonably concluded the evidence was admissible as tending to prove that Garcia was conscious of his guilt in Ballez's murder. See Ransom v. State, 920 S.W.2d 288, 299 (Tex.Crim.App. 1994) ("[C]riminal acts that are designed to reduce the likelihood of prosecution, conviction, or incarceration for the offense on trial are admissible under Rule 404(b) as showing 'consciousness of guilt.'"), cert. denied, 519 U.S. 1030 (1996); see also Bigby v. State, 892 S.W.2d 864, 884 (Tex.Crim.App. 1994) ("Evidence of flight . . . shows a consciousness of guilt of the crime for which the defendant is on trial."), cert. denied, 515 U.S. 1162 (1995). The trial court could also have reasonably concluded that the probative value of the evidence to rebut Garcia's claim of self-defense outweighed its unfair prejudice, if any, under the test set forth in Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App. 1997). 5. Finally, Garcia argues the trial court abused its discretion in admitting evidence of his gang membership. However, the trial court could have reasonably admitted the evidence for "noncharacter purposes" — to establish that Garcia and Ballez were members of rival gangs and thus provide a motive for the murder and refute Garcia's claim of self-defense. See Ortiz v. State, 93 S.W.3d 79, 94 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 998 (2003). The trial court's judgment is affirmed.