Opinion
No. 05-04-01640-CR
Opinion Filed June 19, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F03-58463-JK. Affirm.
Before Justices MOSELEY, RICHTER, and LANG-MIERS.
OPINION
Appellant pleaded not guilty to first degree murder. A Dallas county jury convicted him, made a deadly weapon finding, and sentenced appellant to forty years' confinement. Appellant raises six issues on appeal: (1) that the trial court erroneously limited appellant's right to introduce evidence of Robert Chalk's murder plan, (2) that the trial court erroneously limited appellant's right to introduce evidence of his conversation with Lakeitha Williams, (3) that the trial court abused its discretion in admitting autopsy photographs, (4) that the evidence is factually insufficient to sustain the conviction, (5) that the trial court erroneously instructed the jury on the burden of proof, and (6) that the cumulative effect of the errors warrants reversal of the conviction. We affirm.
BACKGROUND
On December 7, 2003, police discovered Robert Russell's body thirty-five or forty feet from a heavily wooded country road. Medical examiner Jill Urban testified that he had been shot in the chest with buckshot. He suffered small lacerations on his upper lip and abrasions to the left side of his chest and abdomen, his right lower back, the backs of his left arm, left elbow, left fingers, and lower left leg, and his knees. The evidence suggested that Russell had been dragged. His body showed signs of decomposition, including maggot infestation, and may have been outside for a little over a week. Toxicology tests revealed cocaine and cocaine metabolyte in his system. In November 2003, Robert Chalk was selling beer, wine, barbecue, and crack out of his garage. Several of his sellers were living in Chalk's garage, including Melvin Williams, Charles Williams, and appellant. Melvin, a relative of both appellant and Russell, testified that Russell came to the garage almost daily because he was addicted to crack. During the last week of his life, both Melvin and Charles saw Russell and appellant argue over $35. Appellant believed Russell owed him $35 and that he had "stiffed" him before. Melvin testified that appellant was also angry with Russell because a person who owed Russell money had purchased dope, and Russell "snatched" the dope from him. Charles testified that appellant was concerned that "[Russell] was going to get him." Appellant asked Charles whether he thought appellant should kill Russell, to which Charles responded, "Let it go." During the same time period, appellant smoked crack for two or three days straight and was not sleeping. He was also carrying a twelve-gauge shotgun. Melvin thought the shotgun was for "scare tactics" but knew that appellant had recently bought shells. During the last two days of Russell's life, appellant would sit in a chair in the garage training his shotgun on the door. He was not making much sense and repeatedly said, "[Russell] is going to get me." Charles testified, "Anybody that looked like [Russell], he would have shot him." On Saturday, November 29, 2003, Melvin was selling crack in the garage. Appellant and a person named Maurice were also there. Maurice was a newer customer and had recently started to hang out with appellant. Maurice and appellant had access to a gray car. Around 3:00 a.m., Melvin went to sleep on a bed in the garage, leaving his remaining crack for appellant to sell. At the time, appellant was sitting in the chair with the shotgun. A short time later, Chalk came back to the garage and woke Melvin asking him for the money from the crack sales. Melvin told Chalk that he had given the crack to appellant. Neither appellant nor Maurice were in the garage. Melvin then went back to sleep. Robert Chalk testified that at the time of the murder he was selling about $200/day of crack cocaine out of his garage and making about $40/day as profit. Chalk knew that appellant and Russell were arguing over $35 during the week before Russell's death. Chalk thought appellant was going to kill Russell over the money. Chalk testified that on Saturday night he was visiting his "baby momma" and did not return home until 4:00 a.m. Upon returning home, he went to the garage and spoke with Melvin and then returned to the house and went to sleep. Chalk and his wife, Camillia Jones, testified that later that morning, they heard a knock on the door and opened the door to appellant who was holding a double barrel shotgun like the one he had in the garage. Appellant said he had killed Russell, but Chalk did not believe him. He thought appellant was telling him a story to avoid paying Chalk the $60 he owed. Appellant offered to show Chalk the location of the body and showed him a broken shotgun shell. Chalk did not call the police because he thought appellant was joking. Later that evening, appellant gave Chalk the $60 he owed plus $20 extra. Chalk did not see appellant or the gray car again. The shotgun remained in the garage for the next week. In a statement to police, Chalk stated:I have been living at my house at 2616 Seevers for about 5 years. I sell candy, pickles, beer, and wine out of the back of the house. [Appellant] and [Russell] went to the pawn shop on Jefferson and pawned some tools or something. They got in an argument. A lady took them to the pawn shop. She lives in Plano, but I do not know her name. I found out about the pawn shop trip from the lady. Later on [appellant] showed up. I came outside and seen he was in the backyard. He responded "I'm looking for [Russell], [Russell] owes me $35". . . . Then he went on saying I'm tired of [Russell], I have fought all of them ever since I have been in the family. I went back in the house and stayed there awhile. Later I came back outside. [Appellant] had been drinking and was intoxicated now. He started talking crazy. He said [Russell] has a 357 gun and you better watch him. [Appellant] kept saying I am going to kill [Russell]. I'm not no punk. Then [appellant] looked at me and said are you calling me a punk and I said no. I thought nothing of it. I told Melvin about it. Melvin said I ain't listening to what [appellant] said. This all took place on Saturday during the evening. I left and go off for awhile. I came back over to Seevers and everyone was talking about [appellant] running around with a shotgun looking for [Russell]. So me and Melvin talk about it. Melvin felt [appellant] was just drunk talking crazy. I left and went over to Tyler Street for a couple of hours then came home about 4 in the morning. I went to the back house and woke Melvin up. I asked Melvin if he had the money for the beer/wine sales and he said no [appellant] has it. There was about $60. I asked Melvin where the shotgun was we kept in the back house. He said [appellant] must have it. I asked where Maurice was and Melvin did not know. I went in the house and my wife was getting ready for work. I herd a knock on the door. I opened the door and it was [appellant]. He had the shotgun in his hand and said, these are his exact words "I done that". I said done what? "he said "I killed [Russell]." I felt it was a game because he messed my money off or something. I said give me my money. I don'twant to hear about that. He said I'm serious, I don't have your money. He siad you don't belive me. He said you can come out to my car, I used a botle of hot sauce to cover up the blood. I said I'm not coming, give me my gun. My wife said don't bring a gun in here. I told him to take the gun and put it in the back. I said you need to give me my money. I still think he was just making up an excuse not to give me my money. He showed me the gun. He broke it open and showed me the shell on the right side was missing. I said where did you shoot him at. I shot him in the back yard. He said [Russell] came to the fence, he put the gun to his chest and he shot him. Then I took the car and pulled it in the back. He pulled him and put him in the car. He said he could not find no shell. My wife heard all of this and said to get him out door, and shut my door. He kept on talking and was trying to convince me he had shot [Russell] because I was still mad about my money. [Appellant] said he took [Russell] over by Cedar Crest Golf Course, and pur him up under some bushes. [Appellant] said I can get you your money. He left and went toward the back where Melvin is at. He gave Melvin the shotgun to put back up or whatever. My wife went to work and I went to lay down. About 11am or 12 I went to talk with Melvin. I told Melvin what [appellant] told me. The car was still out there. [Appellant] was gone. I told melvin everything he told me. Melvin went out there and looked inside the car. Melvin came back in and said my heart almost dropped. He said at first I thought it was blood but it was hot sauce. He siad he saw the bottle of hot sauce. I told Melvin [appellant] said he put hot sauce in there. I said Melvin people don't play lkie that. I aksed Melvin if he had heard a gunshot and he said no. I asked around and no one else heard a shot. Later on [appellant] showed up with Maurice in the grey car. [Appellant] said I got your money. He gave me $60 he owed me and gave me an extra $20. he sat back there with Melvin. he got drunk and played dominoes with Melvin, Maurice, and Charles. After that day I did not see him anymore. After a couple of days I asked Melvin if he had seen [appellant] or [Russell] or Maurice and he said no. Melvin said it was not unusual for [Russell] to be gone for a few days. We even called LSJC to see if [appellant] was in jail. Days passed and Melvin told the family what I had heard. Melvin's sister called. I talked to her on the phone. I told her what they told me. The shot gun was at the house yesterday but Charles got rid of it. We heard the police were coming over so I told Charles to clean up. We put the beer and wine in the house and Charles sold the gun for probably $10 or $20.[Sic et passim]. Melvin testified that when Chalk later told him that appellant had murdered Russell, Melvin walked around to the front of the house to look in the gray car. He opened the back door and saw huge red spots all over the passenger side of the back seat and the floorboard. He also saw a half empty bottle of hot sauce on the floor. He touched and smelled the red spots and determined that they were hot sauce. He then went back to the garage. Appellant and Maurice returned to the garage later that Sunday with both the gray car and the shotgun. Appellant paid Chalk for the remainder of appellant's crack plus an extra $20. Appellant also bought two rocks of crack for Melvin and one for Charles. Melvin thought it was unusual that appellant had the cash for the crack. Melvin did not see appellant again. Michelle Russell, Russell's sister, testified that Russell and appellant had a crack-smoking lifestyle. Around December 6th or 7th, she heard from Melvin's friend, Diane, and Chalk that something might have happened to Russell. On Sunday, she and her cousins went to Arrow Road looking for him. They saw his tennis shoe, then a body clad in his blue jeans. She had already called the police that morning. She then tried to contact appellant and his family, particularly his niece Lakeitha. On December 14, she received a phone call from Lakeitha which resulted in her going to 250 Jim Miller Road. She saw appellant working on a car and called the police to arrest him. Michelle later testified that in the week before Russell was shot, Charles Williams told her that "[Chalk] said he was going to kill [appellant] and [Russell]." Detective Robert Ermatinger testified that he received a call and drove to Arrow Road where the body was found. He noticed a jacket laying in a ditch just south of Arrow Road, a bloody board, and Russell's wallet. He could also see the remains of a trail from the ditch to where the body was found in the woods. He concluded that Russell had been murdered somewhere else, then thrown into the ditch and dragged into the woods. Based on his conversation with Chalk and Chalk's affidavit, Ermatinger determined that Chalk's statements were consistent with one another and with Chalk's conversation with Michelle. Chalk helped him locate the shotgun, which a man with no other connection to the case had bought on the street. Ermatinger testified that Chalk's statements initially caused police to focus on appellant as the primary suspect. On December 14, 2003, Officer Phil Harding interviewed appellant at the police station. At 4:25 p.m., he read appellant his rights from a Miranda card. Appellant indicated that he understood his rights. Harding allowed appellant a candy bar, coke, and cigarette. Appellant did not invoke any of his rights, nor did he appear intoxicated. Appellant told Harding that he had just heard about the murder because he had been in Oklahoma City. Harding told appellant that witnesses had connected him to Russell. Appellant responded that anyone could have killed Russell because he stole from people, especially people who were weak and could not defend themselves. Appellant also told Harding that while he had possessed the shotgun at some point, he returned it to the garage the day after Thanksgiving and that Russell was still alive and in the garage at that time. Harding then told appellant that police had the gun and the shell casing and asked him what he would do if the shell casing came back with his DNA on it. Appellant started crying. Harding said, "[Y]ou killed him for whatever reason. You killed him, didn't you," to which appellant nodded his head and responded, "[Y]es." Appellant then dictated a statement to Harding:
I had known [Russell] for 26 years, since I was 10. He was a street-type guy. He had a bad habit of snatching dope at the dope house. When he would snatch dope from me, I would have to stand for it with the Big Man. Big Man was the guy in the picture, Robert Chalk. He was the man running the dope house that I was working for. [Russell] would only snatch the dope when the Big Man was not there, because he knew that Melvin would not do anything, and I wouldn't because we had known each other so long. [Russell] would tell Melvin and Big Man that he was punking me, but when I said something to [Russell] he would deny it. So, it seemed like to me that Big Man and Melvin were working this up so there would be something happen between me and [Russell]. [Russell] was always telling me about a .357 that he had stole out of Big Man's trunk. He showed it to me two days before Thanksgiving. Then the day after Thanksgiving, [Russell] came to the dope house. Melvin told him he would have to leave after he threatened me saying who was faster on the draw. He said it because I was sitting on the bed with the double barrelled 12 gauge. He said things like I can pull mine before you can. Melvin, Charles and an Andre heard this. He then laughed and Melvin told him to leave, and he did. Then on Saturday [Russell] snatched a customer's money again. I told Big Man about it. He told me to take the shotgun and shoot him in the leg if I had to, but don't let him take any more money. Actually, [Russell] came back before Big Man told me that. [Russell] was threatening me because I told him he could not come on the property anymore. I got tired of [Russell] trying to punk me out and threatening to kick my ass. So, I went looking for [Russell]. I went across the alley at another trap and called him out. The people there said he was not there. I went back to Big Man's. Later, I went to [Russell's] auntie Ruth. I did not have the shotgun then. Then Sunday morning around 3 or 4 a.m. I was sitting on the back porch with the shotgun. Since I had been threatened by [Russell], I could not sleep and set up. I knew after me looking for him with the 12 gauge, he would be looking for me. When one of the dogs looked around it spooked me and I got up. I was turning and looking left. As I came around to my left I heard [Russell] shout "Ty." I saw [Russell] with his right hand in his jacket pocket, and his left hand free. He was actually at the outside part of the gate. The gate is only about 4 feet tall. So, when I swung around the barrel was over the gate, and the shot hit him in the chest. There was only one shot. I looked around and no one was around. I went in the house and got the keys from a guy named Morris. The keys were on the T.V. Everyone was asleep. The car was a 1997 Ford 4-Dr.
I put the body in the back seat and drove to Cedar Crest and dumped [Russell] in the bushes. I came back to the dope house and poured hot sauce all over the blood to cover up the blood stains. Then on Monday I went to Oklahoma with Morris in the same car. We went to Oklahoma City. I came back Friday 12-12-03 on the bus. Morris lost the car at a drug house in Oklahoma City. In the 26 years I have known [Russell], this was the worst he had ever been. He was out there. He wasn't the same, more crazy. I love him, but I knew what he could do, and it happened so fast. When I turned around when he yelled Ty, the barrel of the shotgun actually touched his chest, and that is when the gun went off. I never searched him down for the .357.[Sic et passim]. Charles Clow, a firearm and tool mark examiner, testified that the shotgun in evidence was functioning, that the safety features were working, and that it is a deadly weapon. He also testified that the shotgun had a trigger pull of up to four pounds on the front trigger, a little more than four pounds on the back trigger, and that firing a double-barreled, twelve-gauge shotgun would take a voluntary act.
FACTUAL SUFFICIENCY
In his fourth issue, appellant contends that the evidence is factually insufficient "to satisfy the element of identity placed in issue by [appellant's] not guilty plea." Appellant argues that the police initially focused their investigation on appellant as the result of Michelle Russell's statements at the scene, which she based on what Robert Chalk had told her. Appellant argues that civilians, and not police, were driving the investigation and that Michelle's statements were double hearsay. Appellant also argues that Chalk was an admitted liar, thief, and crack kingpin and that Russell had frequented Chalk's crack house and disrupted his crack trade, providing Chalk both opportunity and motive for murder. He further argues that police ignored or overlooked key physical evidence, including several items in Russell's jacket: a lotto ticket with numbers written on it, a crack pipe, a lighter, an I.D. card for an African-American male named Tony Grace, and a pawn ticket for Grace. Appellant also complains that the police did not collect a bloody board located at the crime scene and that police must have misplaced a knife and unfilled prescriptions that were originally among Russell's personal effects. Finally, he argues that Chalk's wife, Melvin, and Charles' testimony implicating appellant is not credible and that the "balance of the record" undermines appellant's confession and Chalk's statement to police. Standard of Review In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Wesbrook v. State, 29 S.W.3d 103, 112 (Tex.Crim.App. 2000). We defer to the fact finder's determinations of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). In conducting a factual sufficiency review, we must discuss the evidence that, according to appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Analysis Reviewing the evidence in a light neutral to the verdict, the record reveals that at least three people, Melvin Williams, Charles Williams, and Chalk, knew that appellant and Russell were fighting in the week before Russell's murder. They all heard appellant complain that Russell was threatening him, and Charles heard him consider whether to kill Russell. Further, Melvin and Charles witnessed appellant waiting for Russell with a shotgun. Both Chalk and his wife testified that appellant arrived at Chalk's home Sunday morning, November 30, admitting that he had shot and killed Russell and carrying the crack house shotgun. This admission later caused Chalk to ask Charles to get rid of the shotgun. Appellant also admitted to Chalk that he had covered up Russell's blood in the back seat of the gray car with hot sauce. Melvin confirmed, upon viewing the back seat of the car, that there were huge splotches of hot sauce and an empty hot sauce bottle. Finally, appellant confessed to the crime and did so in a manner that was consistent with the other witnesses' testimony and Chalk's statement to police. Appellant claims that the police overlooked or misplaced physical evidence but fails to explain the relevance of that evidence. The rest of his argument hinges on the credibility of the witnesses, most of whom admitted before the jury that they were crack addicts and/or lived in or frequented a crack house. And Chalk's wife testified before the jury that she had initially misrepresented her marital status. But resolution of conflicts in the evidence and credibility of witnesses lies within the factfinder's exclusive province. Obigbo v. State, 6 S.W.3d 299, 305 (Tex.App.-Dallas 1999, no pet.). The evidence is not so weak that the verdict is clearly wrong and manifestly unjust, nor is the allegedly contrary evidence so strong that the State could not have met its burden of proof beyond a reasonable doubt. We overrule appellant's fourth issue.EXCLUSION OF EVIDENCE
In his first issue, appellant argues that the trial court erroneously excluded evidence that, before Russell's death, Charles Williams told Russell's aunt, Linda Williams, that Chalk had said he was going to kill appellant and Russell. He first argues that the evidence was admissible because the defense was not offering it to prove the truth of the matter asserted. Rather, he argues, the defense was attempting "to reveal what inculpatory information Charles believed he had with reference to [Chalk] [citation omitted] and to reveal [Chalk's] intent." He further argues that her testimony would have fallen within the protection of Texas Code of Criminal Procedure Article 38.36(a); "[t]he terroristic threat evidence was relevant to, and highly probative of, [Chalk's] intent to slay appellant and [Russell]. The terroristic threat evidence was also highly probative of the previous relationship of [Chalk, Russell, and appellant], the condition of [Chalk's] mind at the time of the shooting, and the circumstances surrounding the murder." Finally, he argues that the statement qualifies as a statement against penal interest under Texas Rule of Evidence 803(24). In his second issue, appellant argues that the trial court erroneously excluded evidence that appellant had confided to Lakeitha Williams that although he had moved Russell's body, he did not murder Russell and that another person had threatened to kill him if he did not move the body. He claims that the trial court should have admitted her testimony under article 38.36 and Rule 803(24). Standard of Review We review a trial court's ruling to admit or exclude evidence under an abuse of discretion standard. Rankin v. State, 974 S.W.2d 707, 718 (Tex.Crim.App. 1998) (op. on reh'g); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g). If the court's decision falls outside the "zone of reasonable disagreement," it has abused its discretion. Rankin, 974 S.W.2d at 718; Montgomery, 810 S.W.2d at 391. First Issue: Facts The jury first heard the suggestion that Chalk had threatened to kill appellant and Russell during the cross-examination of Charles Williams. Defense counsel asked Charles, "[I]n the week before [Russell] was killed, did you say to Ruth and Shay, [Russell's] sister, that [Chalk] had told you that he was going to kill both [appellant] and [Russell]?" Charles denied making the statement or saying anything similar. Before the jury, Linda Williams, Russell's aunt, testified that Charles Williams told her a week after police recovered Russell's body that "[Chalk] better not piss him off or he would tell everything he knows." Outside of the jury's presence, Linda testified that in the week before Russell's murder, Charles was saying "[Chalk] is going to kill [Russell] and [appellant]." After clarification, she later testified outside of the jury's presence, "[Charles] said that [Chalk] said he was going to kill [Russell] and [appellant]." [Emphasis added]. The Court sustained the State's objection on the ground of hearsay. Later in the trial, the State withdrew its hearsay objection and allowed defense counsel to recall Michelle Russell, Russell's sister, and present the testimony that "[Chalk] said he was going to kill [appellant] and [Russell]." First Issue: Law and Analysis Without addressing whether the trial court erred in excluding the contested testimony when the defense offered it through Linda Williams, appellant's argument is moot because the trial court admitted the testimony that Chalk had said he was going to kill appellant and Russell through Michelle Russell. Appellant does not complain that the trial court should have admitted it through a particular source, only that the trial court should have admitted it. Generally, a party waives error regarding improperly admitted evidence if the trial court later admits the same evidence without objection. See Rogers v. State, 853 S.W.2d 29, 35 (Tex.Crim.App. 1993); House v. State, 909 S.W.2d 214, 216 (Tex.App.-Houston [14th Dist.] 1995) (stating any error in allowing inadmissible evidence is cured when the same evidence comes in without objection elsewhere in trial), aff'd, 947 S.W.2d 251 (Tex.Crim.App. 1997). And appellant has failed to preserve error under article 38.36 and Rule 803(24) because he failed to sponsor the evidence on either ground. The basis for party responsibility is, among other things, Texas Rule of Appellate Procedure 33.1. Reyna v. State, 168 S.W.3d 173, 177 (Tex.Crim.App. 2005). It provides that as a prerequisite to presenting a complaint for appellate review, the record must show that the party "stated the grounds for the ruling that [he] sought from the trial court with sufficient specificity to make the trial court aware of the complaint." Id. The proponent does not meet this prerequisite by telling the judge that the evidence is admissible. Id. The proponent, if he is the losing party on appeal, must have told the judge why the evidence was admissible. Id. Appellant failed to make the specific arguments on the record that he now presents for appeal and failed to preserve error for review. We overrule appellant's first issue. Second Issue: Facts Lakeitha Williams, Russell's first cousin and Melvin Williams' daughter, testified outside of the jury's presence that, between the time police recovered Russell's body and arrested appellant, she had a face-to-face conversation with appellant:Well, the conversation was just, basically, you know, he told me, you know that something happened and, you know, I didn't know what had happened. And when I found out, you know, all the things that had happened, he told me that he didn't do it. And he felt scared, you know, and he was upset.You know, he was really upset, really upset. And I have never seen him upset like the way he was before about — he admitted that he moved his body. But he swore up and down to me that he didn't pull the trigger. And that he was threatened by the — another person that if he didn't move the body, then he would be dead also hisself. The trial court sustained the State's objection on the ground of hearsay and excluded the evidence. Appellant argued that her statement fell under two hearsay exceptions: statement against interest and excited utterance. The Court responded that "the argument for statement against interest does not meet the criteria of a reasonable person in the declarant's position[;] [he] would not have made the statement unless believing it to be true since it is clearly in mitigation in reduction of the offense charged, not admitting something that there was no prior knowledge by anyone of. . . . [I]t [also] doesn't meet the requirement of a res gestae or excited utterance and — under the circumstances which have been described." Second Issue: Law and Analysis Appellant has failed to preserve error for review on the ground that the trial court improperly excluded the evidence under article 38.36 because he did not sponsor his evidence under article 38.36 before the trial court. See Reyna, 168 S.W.3d at 177. Further, his claim fails under Rule 803(24), which allows, as an exception to hearsay, a statement that "at the time of its making . . . so far tended to subject the declarant to . . . criminal liability . . . that a reasonable person in declarant's position would not have made the statement unless believing it to be true." In order for a declaration against interest to be admissible under Rule 803(24), the statement must be self-inculpatory with corroborating circumstances to indicate the trustworthiness of the statement. Dewberry v. State, 4 S.W.3d 735, 751 (Tex.Crim.App. 1999). A number of factors are relevant to this inquiry: (1) whether the guilt of the declarant is inconsistent with the guilt of the defendant; (2) whether the declarant was so situated that he 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 corroborative facts. Woods v. State, 152 S.W.3d 105, 113 (Tex.Crim.App. 2004). This exception does not apply to testimony that tends to absolve a defendant of criminal responsibility. See Hafdahl v. State, 805 S.W.2d 396, 402 (Tex.Crim.App. 1990). Appellant's statement through Lakeitha Williams did not qualify as a statement against penal interest because it absolved him of the greater offense of murder. In that statement, he conceded only to concealing the body. Further, the timing of the statement, after police recovered the body and began to focus on appellant as their primary suspect but before arresting him, is self-serving. And he had already admitted to Chalk and his wife that he killed Russell. Additionally, other than claiming that he was grief-stricken and that Chalk concealed the murder weapon, appellant has failed to show any circumstances to corroborate his statement. Neither the testimony of any other witness nor any physical evidence suggest that appellant was guilty only of concealing Russell's body after someone else committed murder. We overrule appellant's second issue.