Mitchell v. State

Full title: JAMES MITCHELL, JR., Appellant v. THE STATE OF TEXAS

Court: Court of Criminal Appeals of Texas

Date published: Apr 6, 2005

No. PD-1221-03 (Tex. Crim. App. Apr. 6, 2005)

Opinion

No. PD-1221-03

Delivered April 6, 2005. DO NOT PUBLISH.

On Appellant's Petition for Discretionary Review from the Fourth Court of Appeals, Kinney County.

HOLCOMB, J., delivered the opinion of the Court, in which MEYERS, PRICE, WOMACK, JOHNSON, and COCHRAN, JJ., joined. KEASLER, J., filed a dissenting opinion, in which HERVEY, J., joined. KELLER, P.J., dissented. COCHRAN, J., filed a concurring opinion.

OPINION

HOLCOMB, J.

Appellant James Mitchell, Jr., was convicted of taking wildlife resources without the consent of the landowner. See Tex. Parks Wild. Code Ann. § 61.022 (Vernon 2002). The trial court assessed appellant's punishment at 180 days confinement in a state-jail facility and a fine of $1500. In an unpublished memorandum opinion, the Fourth Court of Appeals affirmed the judgment of the trial court. Mitchell v. State, 04-02-00084-CR, slip op. at 12, 2003 Tex. App. Lexis 5269 *19 (Tex.App.-San Antonio 2003, pet. granted). We granted review to determine whether the court of appeals erred in holding that several out-of-court statements were admissible under Texas Rules of Evidence 801(e)(2)(E) and 803(24). Tex.R.App.P. 66.1. We reverse.

The Relevant Historical and Procedural Facts

On December 21, 1999, U.S. Border Patrol agents took into custody, and questioned, two teenage boys on suspicion of poaching. Through custodial interrogation, the boys admitted shooting three deer on private property and implicated appellant as a party to the offense.¹ See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). Their out-of-court statements, admitted at trial over objection, allowed the jury to consider the following additional facts: that appellant had dropped off the boys to hunt on private property (the Harris Ranch), that appellant had returned and retrieved the boys' hunting rifle, and that appellant intended to return to pick up the boys and the deer. Also, out-of-court statements made by appellant's father were received into evidence over a hearsay objection and a Confrontation Clause objection. These statements tended to show that, during the time the boys were hunting on the Harris Ranch, appellant was with the boys either having lunch or hunting. The boys' out-of-court statements were admitted at appellant's trial through the testimony of the Border Patrol agents and a game warden. Appellant argued to the trial court that the boys' out-of-court statements were hearsay; the State responded that the statements were admissible under the co-conspirator exception to the hearsay rule and convinced the trial court that evidence of the conspiracy would be shown through subsequently offered testimony. See Tex. R. Evid. 801(e)(2)(E). The trial court overruled appellant's objection but granted his request for a running hearsay objection. See e.g., Lane v. State, 151 S.W.3d 188, 193 (Tex.Crim.App. 2004) (a party may preserve error by running objection); Garza v. State, 996 S.W.2d 276, 279 (Tex.App.-Dallas 1999, pet. ref'd) (proponent must offer evidence of the existence of a conspiracy). After the State rested, appellant argued that the boys' out-of-court statements should be struck because the State never offered any evidence that those statements were made in the course of a conspiracy.² The trial court overruled the motion to strike. At the conference on the jury charge, appellant moved the court to instruct the jury to disregard all of the out-of-court statements because they were hearsay and violated appellant's right to be confronted with the witnesses against him under both the state and federal constitutions. The trial court overruled appellant's request for the instruction.

The Court of Appeals' Decision

Instead of addressing appellant's complaint that the statements should have been struck because no evidence of a conspiracy was shown, the court of appeals affirmed the trial court on a different theory offered by the State on appeal — i.e., that the boys' out-of-court statements were hearsay-excepted under Texas Rule of Evidence 803(24) (statements against penal interest).³ The court of appeals reasoned that the boys' statements were admissible because they were "self-inculpatory," i.e., "they expose[d] the boys to liability for shooting their deer on the Harris Ranch without Harris' permission [and] although the statements appear to be the product of custodial interrogation by law enforcement officials, the statements nevertheless bore the necessary indicia of trustworthiness." Mitchell v. State, slip op. at 12. We disagree; the statements were not hearsay-excepted because they did not meet the reliability requirements of Rule 803(24).

Analysis

Texas Rule Evidence of 803(24) defines a statement against interest as:

A statement which was at the time of its making so far . . . tended to subject the declarant to . . . 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.

To be admissible under this rule, the out-of-court statement must be self-inculpatory with corroborating circumstances indicating the trustworthiness of the statement. Dewberry v. State, 4 S.W.3d 735, 751 (Tex.Crim.App. 1999). The proponent of such a statement is required to show that it exposes the declarant to criminal liability and is trustworthy and reliable under corroborating circumstances. See Cofield v. State, 891 S.W.2d 952, 953 (Tex.Crim.App. 1994). Only those statements that are wholly self-inculpatory are trustworthy enough to be admissible under the rule. Id. at 956. We may look also to the existence of independent, corroborating facts that tend, either directly or circumstantially, to establish the truth of the matter asserted by the statement. See Dewberry, 4 S.W.3d at 751. We conclude that the boys' statements were not wholly self-inculpatory and the State did not offer corroborating circumstances to clearly show the trustworthiness of the boys' statements. See id. As the court of appeals reasoned, the statements did expose the boys to criminal liability, but, as appellant points out, the statements also exposed appellant to criminal liability. See Cofield, 891 S.W.2d at 956. The United States Supreme Court has said, "The fact that a person is making a broadly self-inculpatory confession does not make more credible the confessions's non-self-inculpatory parts." Williamson v. United States, 512 U.S. 594, 599 (1994). The concern is that the declarant may be attempting to shift blame to another or curry favor with the State. See id. at 603; see also Lilly v. Virginia, 527 U.S. 116, 139 (1999) (nontestifying accomplice's confession, in which he incriminated himself as well as defendant, was not sufficiently reliable because accomplice may have been attempting to shift blame to defendant). We are not assured that the non-self-inculpatory parts of the boys' statements were not meant to curry favor with law enforcement, to spread or shift blame to appellant, or that the boys were not merely attempting to avenge themselves or divert attention away from their own culpability. See Cofield, 891 S.W.2d at 956. Although there is no definitive test for determining the sufficiency of corroborating circumstances, some of the factors applicable to this case are (1) the timing of the statement and its spontaneity; (2) the relationship between the declarant and the party to whom the statement was made; and (3) the existence of independent corroborating facts which, either directly or circumstantially, tend to establish the truth of the matter asserted by the statement. See Davis v. State, 872 S.W.2d 743, 749 (Tex.Crim.App. 1994). Even though the court of appeals addressed the third factor and found the independent corroborating facts to be sufficient,⁴ the court of appeals did not adequately consider the first two factors. We believe it significant to the reliability requirement that the boys' out-of-court statements were the product of police interrogation and were made by juvenile suspects who had been apprehended at dusk in a remote area after evading law enforcement for half-an-hour and who had changed their story at least three times during the course of the interrogation. That is, because the statements were elicited by law enforcement while in custody, the boys may have been attempting to curry favor, spread the blame, or divert attention away from their own culpability.⁵ See Cofield, 891 S.W.2d at 955; Davis v. State, 872 S.W.2d at 748 n. 11; cf. Dewberry v. State, 4 S.W.3d 735, 753 (Tex.Crim.App. 1999) (out-of-court statements not elicited under police interrogation; rather, statements were freely and spontaneously spoken to a friend). Moreover, when a statement is made spontaneously, it is thought to be much more trustworthy. Woods v. State, 152 S.W.3d 105, 113 (Tex.Crim.App. 2004). Here, the record shows that the statements were not made spontaneously; rather, the boys' story changed several times over the course of the interrogation. Therefore, we sustain appellant's complaint that the statements did not meet the trustworthiness requirement under the declaration-against-interest exception to the hearsay rule.⁶ See id.; Cofield, 891 S.W.2d at 956; Tex. R. Evid. 803(24). Having found error, we now consider whether it was harmful under Texas Rule of Appellate Procedure 44.2(b). Tex.R.App.P. 44.2(b) (non-constitutional errors that do not affect substantial rights must be disregarded). An appellate court may not reverse if, after examining the record as a whole, it has fair assurance that the error did not influence the jury or had but a slight effect. Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001). It is a violation of the poaching statute to "hunt or catch by any means or method or possess a wildlife resource at any time and at any place . . . unless the owner of the land or water, or the owner's agent, consents." See Tex. Parks Wild. Code Ann. § 61.022; Harrison v. State, 76 S.W.3d 537, 541 (Tex.App.-Corpus Christi 2002, no pet.) (construing statute to include element of culpable mental state). To sustain appellant's conviction as a party to the boys' poaching expedition, the record evidence must show that appellant acted with intent to promote or assist the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid the boys.⁷ See Tex. Pen. Code Ann. § 7.02(a)(2). The record reflects that the boys' out-of-court statements were the heart of the State's case. Therefore, we do not have fair assurance that the admission of the evidence did not influence the jury or had but a slight effect. See Solomon v. State, 49 S.W.3d at 365.

Conclusion

Because the court of appeals erred in affirming the trial court's admission of the boys' statements under Rule 803(24) and because we are not fairly assured that the error did not influence the jury or had but a slight effect on its deliberations, we reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings.

OPINION

COCHRAN, J., filed a concurring opinion.

I join the majority opinion. I write separately only to address appellant's arguments concerning the applicability of the "right ruling, wrong reason" theory used by the court of appeals to uphold admission of the out-of-court statements in this case. At trial, the State repeatedly argued that the custodial statements made by the two boys to U.S. Border Patrol agents were admissible as non-hearsay co-conspirator statements under Tex. R. Evid. 801(e)(2)(E). Appellant repeatedly objected to their admission, arguing (correctly) that they were hearsay statements and that they were not made in furtherance of any conspiracy. These were timely and specific objections. Appellant did not make any Confrontation Clause objection, ostensibly because counsel knew that there is no valid Confrontation Clause objection to co-conspirator statements.¹ The State kept promising to lay a proper foundation for their admission under rule 801(e)(2)(E). The trial court repeatedly overruled appellant's objections based upon that promise. That promise was never fulfilled. Appellant had obtained a running objection to all of these out-of-court statements made by both boys. At the end of trial, appellant once again objected to the admission of these out-of-court statements both as hearsay — because the State failed to meet the foundation requirements of a co-conspirator statement — and under the Confrontation Clause. He asked that the hearsay testimony be struck. The trial court overruled both the hearsay and Confrontation Clause objections. The court of appeals, without any reference to the co-conspirator rule, turned to an analysis of the admissibility of the out-of-court statements as Statements Against Penal Interest under Tex. R. Evid. 803(24). The court of appeals noted that appellant had objected on the basis of the Confrontation Clause, but that objection came too late-at the end of trial after the statements had already been (erroneously) admitted as co-conspirator statements. Therefore, it did not analyze the admissibility of the statements over a Confrontation Clause objection.² The court of appeals applied the "right ruling, wrong reason" rule to the trial court's admission of these statements. It stated:

As a reviewing court, we determine whether the record supports the trial court's ruling. Under such a review, if the trial court's decision is correct on any theory of law which finds support in the evidence, it will be sustained.³

The "right ruling, wrong reason" rule protects the judicial system from wasting scarce resources in a misguided emphasis upon eloquence.⁴ It is a species of the "no harm, no foul" rule, and it promotes judicial efficiency and the accuracy of result over technical form. It would make little sense for a reviewing court to declare this evidence was not admissible under Rule X, although it was admissible under Rule Y. Therefore, we will reverse the trial court's judgment and make the parties retry the case exactly as it was tried the first time, with exactly the same evidence, but this second time the parties must be more articulate and cite Rule Y instead of Rule X.⁵ The primary concern of the reviewing court should be "Was this evidence admissible?" not "Did the proponent (or the trial judge) use the most felicitous language or correct legal rationale for admitting it?" To employ the "right ruling, wrong reason" rule, however, the reviewing court must be at least relatively certain that if the case were retried with all the parties and the judge at the optimal level of articulateness and legal acuity, the evidentiary ruling would have been the same. That is, if we assume that the party who offered the evidence relies upon the most appropriate legal rationale on a second go-around, then we must also assume that the party opposing the admission of that evidence would also use the most persuasive legal rationale for excluding it, and that the trial court would rule in accordance with the correct legal rationale. I am not at all confident that, in this case, had the State originally offered the boys' out-of-court statements as Statements Against Penal Interest under Rule 803(24), those statements would have been admitted or admissible over a Confrontation Clause objection. Here, appellant's attorney did make a Confrontation Clause objection as soon as it became obvious that the State failed to keep its promise to lay a foundation for admitting the boys' statements under the co-conspirator rule. He was not required to make an invalid and inappropriate Confrontation Clause objection to evidence offered under one rule simply to preserve his right to complain on appeal about the admission of this evidence under some other unspecified evidentiary rule. Had the State originally offered these statements under Rule 803(24), appellant's attorney would have had the opportunity to make a timely Confrontation Clause objection to the admission of an out-of-court custodial statement by a non-testifying accomplice. Sauce for the goose is sauce for the gander. If a reviewing court may assume that, on a second go-around, the State would offer the boys' out-of-court words as statements against penal interest, why would it not also assume that appellant would make a timely Confrontation Clause objection when, as here, he did make that objection as soon as there was a valid basis for it? However, as the majority notes, this issue need not be decided in the present case because the Court holds that the boys' out-of-court statements were not admissible even under Rule 803(24). Thus, we need not address any Confrontation Clause issue or whether the "right ruling, wrong reason" rule should apply in this situation. I therefore join the majority opinion.

1 See, e.g., Bourjaily v. United States, 483 U.S. 171, 182-84 (1987); United States v. Inadi, 475 U.S. 387, 400 (1986). In Inadi, the Supreme Court addressed the inherent reliability of co-conspirator statements:

Because they are made while the conspiracy is in progress, such statements provide evidence of the conspiracy's context that cannot be replicated, even if the declarant testifies to the same matters in court. When the Government — as here — offers the statement of one drug dealer to another in furtherance of an illegal conspiracy, the statement often will derive its significance from the circumstances in which it was made. Conspirators are likely to speak differently when talking to each other in furtherance of their illegal aims than when testifying on the witness stand. Even when the declarant takes the stand, his in-court testimony seldom will reproduce a significant portion of the evidentiary value of his statements during the course of the conspiracy.

In addition, the relative positions of the parties will have changed substantially between the time of the statements and the trial. The declarant and the defendant will have changed from partners in an illegal conspiracy to suspects or defendants in a criminal trial, each with information potentially damaging to the other. The declarant himself may be facing indictment or trial, in which case he has little incentive to aid the prosecution, and yet will be equally wary of coming to the aid of his former partners in crime. In that situation, it is extremely unlikely that in-court testimony will recapture the evidentiary significance of statements made when the conspiracy was operating in full force.
Id. at 395. In his concurrence in Crawford v. Washington, Chief Justice Rehnquist repeated the Inadi rationale for exempting co-conspirator statements from any Confrontation Clause requirement that the out-of-court declarant testify at trial as a predicate to their admissibility. Crawford v. Washington, 541 U.S. 36, 73 (2004) (Rehnquist, C.J., concurring).

2 Even before the Supreme Court's decision in Crawford, it seemed quite apparent that many, if not most, out-of-court custodial interrogation statements made by a non-testifying accomplice or co-defendant would not be admissible against the defendant as a statement against penal interest over a Confrontation Clause objection. See Lilly v. Virginia, 527 U.S. 116 (1999). Although Lilly spawned a remarkable total of five opinions, all nine members of the Supreme Court generally agreed with Justice Stevens that:

It is highly unlikely that the presumptive unreliability that attaches to accomplices' confessions that shift or spread blame can be effectively rebutted when the statements are given under conditions that implicate the core concerns of the old ex parte affidavit practice — that is, when the government is involved in the statements' production, and when the statements describe past events and have not been subjected to adversarial testing.

Id. at 137. Thus, by 1999, well before this trial, it was fairly well established that only those statements against interest which were wholly self-inculpatory as to the out-of-court declarant would likely survive a Confrontation Clause objection. Under Lilly, the gold of purely self-inculpatory statements could not drag in the dross of statements which could be considered blame-shifting or blame-minimizing. See, e.g., Hill v. Hofbauer, 337 F.3d 706, 714-18 (6^th Cir. 2003) (stating that even prior to Lilly, law was well-established that the admission of nontestifying co-actor's custodial statements inculpating his cohorts was inherently unreliable and presumptively inadmissible under Confrontation Clause); United States v. Westmoreland, 240 F.3d 618, 625-28 (7^th Cir. 2001) (admission of co-conspirator's custodial statements that included information about what defendant did and said violated confrontation rights under Lilly); United States v. Castelan, 219 F.3d 690, 694-96 (7^th Cir. 2000).

3 Mitchell v. State, 2003 Tex. App. LEXIS 5269, No. 04-02-00084-CR, slip op. at 12 (Tex.App.-San Antonio, June 25, 2003) (not designated for publication) (citing McNair v. State, 75 S.W.3d 69, 71 (Tex.App.-San Antonio 2002, no pet.)).

4 See, e.g., Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990); Sewell v. State, 629 S.W.2d 42, 45 (Tex.Crim.App. 1982).

5 See generally McCormick on Evidence § 52, at 131 (Edward W. Cleary, ed., 3d ed. 1984) (stating that normally the overruling or sustaining of an untenable specific objection will not be overturned if a proper ground exists for doing so, even though not advanced in the trial below).

KEASLER, J., filed this dissenting opinion in which HERVEY, J., joined.

The trial judge did not abuse his discretion. The Court of Appeals's decision does not warrant review by this Court. The statements were admissible under Rule 803(24). And Mitchell was not harmed by the admission of the statements. Because the majority disagrees with me on all these points, I dissent.

Standard of Review

The admissibility of an out-of-court statement under the exceptions to the hearsay rule is within the trial judge's discretion.¹ The appellate court should not conduct a de novo review; its role is limited to determining whether the record supports the trial judge's ruling.² Therefore, a reviewing court should not reverse unless a clear abuse of discretion is shown.³ An abuse of discretion occurs only when a judge's decision is so clearly wrong as to lie outside the zone within which reasonable persons can disagree.⁴ Additionally, a trial judge's decision should be sustained if it is correct on any theory of law applicable to the case.⁵ This is especially true with regard to the admission of evidence.⁶ The Court of Appeals properly applied this standard of review. It concluded that the trial judge did not abuse its discretion in admitting the testimony at issue because it was admissible under Rule 803(24). It evaluated the testimony under this Rule and found it met the Rule's requirements. The judge's decision to admit this testimony is not so clearly wrong as to lie outside the zone within which reasonable people might disagree. Although the judge did not consider the testimony pursuant to Rule 803(24), a look to those factors reveals, at most, a close call. The majority analyzes the factors differently than the Court of Appeals and I do. Reasonable minds can disagree. Therefore, it cannot be said that the trial judge abused his discretion in admitting the evidence.

Reasons for Granting Review

Rule 66.3 of the Rules of Appellate Procedure sets forth reasons for granting discretionary review of a Court of Appeals's decision. While the rule is not absolute, it provides considerable guidance. It is worth noting that, in this case, not one of the listed reasons for granting review is present. The appellate court's decision does not conflict with that of another appellate court. It has not decided an important question of state or federal law which we should settle. It has not decided an important question of state or federal law that conflicts with a decision from this Court or the United States Supreme Court. It has not declared a statute unconstitutional or misconstrued Rule 803(24). The justices of the appellate court did not disagree — it was a unanimous decision. And the appellate court has not so far departed from the accepted and usual course of judicial proceedings as to call for an exercise of our supervision. Instead, the Court of Appeals applied established law to a specific set of facts, and it did so in an unpublished opinion. There is just no reason for us to review the decision. Rule 803(24) Even if granting review were appropriate, we should conclude that the Court of Appeals did not err in its application of Rule 803(24). In order for a declaration against interest to be admissible under Rule 803(24), the statement must be self-inculpatory and it must have sufficient corroborating circumstances to indicate its trustworthiness.⁷ The majority concludes that the statements fail both parts of this test. I disagree. The Court says that to satisfy the "self-inculpatory" test, the statement must be "wholly self-inculpatory."⁸ It relies on Cofield v. State. ⁹ But the Court has misread Cofield. In Cofield, we discussed the dangers of statements which inculpate both the declarant and the defendant. But we also readily acknowledged that "a trial court does not always abuse its discretion in admitting a hearsay statement which inculpates not only the declarant but the defendant as well."¹⁰ Additionally, in more recent years, we have found admissible statements which were not wholly self-inculpatory.¹¹ In this case, the boys' statements inculpated themselves and Mitchell. That does not render them automatically inadmissible, as the majority seems to conclude. Instead, it means that they satisfy the first test. They are, in fact, self-inculpatory. We should then proceed to the second test. The statements satisfy that test as well, because there are sufficient corroborating circumstances indicating the trustworthiness of the statements. The majority concludes otherwise based in part on its determination that the boys' statements "changed several times over the course of the interrogation,"¹² but my review of the record does not support this conclusion. Myers testified that the boys told him that they had killed a buck and they were waiting for their father to pick them up. Myers asked them "if there was anything else they needed to tell" him, and they said, "No, that's all we did." Myers later found a buck and two does that the boys had killed. He confronted the boys with that information, and they admitted killing the does as well. The boys did not have a gun with them and told Myers that they had given the gun to their father. Martinez testified that when he asked the boys what they were doing, they initially told him "nothing," but then admitted that they had been hunting. He asked them where their guns were, and they said that their father had come by to pick them up. He asked them what they were dragging across the railroad, and they said that they had shot a buck. Martinez said that they had dragged more than one thing, and the boys admitted that there were also a couple more deer. The boys' story did not "change several times." While they may have initially said that they had done "nothing," they admitted hunting to both agents. They stated first that they had shot a buck, and when pressed, admitted also to shooting two does. This is not a case of a story changing multiple times. It is a case of adolescents reluctantly giving up additional information when pressed. These facts are not such that would render the statements untrue. The boys' story was corroborated in a number of ways. The buck and two does were found. Mitchell showed up to pick them up. Mitchell is one of the boys' father. No vehicles were found in the remote area. The boys had no weapons. A rifle of the same caliber that was used to kill the deer was found in Mitchell's truck. The majority says that the statements were eventually made by "juvenile suspects who had been apprehended at dusk" and were "in custody."¹³ The majority exaggerates the facts. No handcuffs were placed on the boys and they were not interrogated in any kind of interrogation room. Instead, they were questioned at the scene and then brought back to the Border Patrol checkpoint, where they were "standing in the open section of our trailer." These facts do not indicate to me that the boys were attempting to curry favor or spread the blame. The statements here satisfy Rule 803(24) and the Court of Appeals correctly found them admissible.

Harm

Even if the Court of Appeals were wrong, and the trial court did err in admitting the testimony, the next step would be to remand to the Court of Appeals to consider whether Mitchell was harmed. The majority conducts the harm analysis itself, but this is inappropriate. Finding error where the Court of Appeals did not, we should remand for that court to consider harm.¹⁴ And even if we were to consider harm, the majority's harm analysis is flawed. The Court evaluates harm by asking whether the properly-admitted evidence was sufficient to convict Mitchell. But in a Rule 44.2(b) analysis, "[t]he question is not whether there was sufficient evidence to support the verdict. Instead, the reviewing court should consider the entire record . . ., including testimony, physical evidence, jury instructions, the State's theories and any defensive theories, closing arguments, and voir dire if applicable." The court should also consider the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case, whether the State emphasized the error, whether the erroneously admitted evidence was cumulative, and whether it was elicited from an expert.¹⁵ The majority does not consider any of these factors except the nature of the evidence supporting the verdict. If the Court is inclined to conduct its own harm analysis, it should at least do so correctly.

Conclusion

I would improvidently grant this petition because there is no valid reason for reviewing the appellate court's decision. In lieu of that, I would affirm the Court of Appeals's judgment. Because the Court does neither, I dissent.