No. 09-06-319 CR
Submitted on December 12, 2007.
Opinion Delivered April 9, 2008. DO NOT PUBLISH
On Appeal from the 258th District Court Polk County, Texas, Trial Cause No. 18, 456.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
HOLLIS HORTON, Justice.
This case concerns the trial court's exclusion of a witness's statement offered to support the defendant's claim that he did not know he was driving a stolen truck. The defendant, Christopher Daniel Watkins, was indicted and tried for theft and the unauthorized use of a motor vehicle. The jury acquitted Watkins on the theft charge but convicted him of unauthorized use of a motor vehicle. In a single issue, Watkins asserts that the trial court abused its discretion when it refused to admit into evidence the recorded statement of Donald Winn. We conclude that the trial court erred in refusing to admit the transcript of the tape recording and further conclude that the exclusion of the evidence in this case was harmful. We reverse Watkins's conviction for unauthorized use of a motor vehicle and remand that portion of his case to the trial court for a new trial.
Watkins attempted in several ways to introduce Winn's account of the circumstances under which the truck had been taken, and the record reflects three statements from Winn that are all hearsay. First, Watkins attempted to examine his investigator about a conversation she had with Winn when she interviewed him. Second, Watkins's investigator obtained a written statement from Winn that the trial court excluded from evidence. Finally, Watkins offered, and the trial court excluded, a recorded conversation between Winn and Watkins. While Watkins's issue is not specific concerning which of these statements are the subject of his complaint on appeal, his argument makes it clear that his complaint concerns the trial court's refusal to allow the jury to hear the contents of the recorded statement. Therefore, we interpret Watkins's issue as being limited to the exclusion of his evidence concerning the recorded conversation between Watkins and Winn.
Background
The State indicted Watkins for theft and unauthorized use of a motor vehicle. See Tex. Pen. Code Ann. § 31.03(a); (e)(5) (Vernon Supp. 2007), § 31.07 (Vernon 2003). Throughout his jury trial, Watkins asserted that he did not steal the truck and trailer and that he did not know that they were stolen until a border inspector stopped the truck at the border. Watkins was driving the truck when it was stopped. Watkins testified at trial that Winn, a long-time friend, approached Watkins and requested his assistance in driving the truck and trailer to a job site located in the Texas Rio Grande Valley. Watkins testified that Winn said the truck and trailer, both of which belonged to his uncle, were needed in the Valley on a construction site. Winn agreed to pay Watkins for his assistance. Watkins explained that he was asleep when Winn drove the truck into Mexico, and upon waking, Watkins asked to return to Texas so he could go home. The court appointed an investigator, Audrey Rife, who talked to Watkins and interviewed Winn. Winn signed a statement concerning his version of the events that lead to Watkins's arrest. Rife testified that Watkins claimed he did not steal the truck or know that it had been stolen. However, when Watkins attempted to elicit Rife's testimony about Winn's written statement, the State raised a hearsay objection and asserted that no exception applied because Winn was neither the person on trial nor available at Watkins's trial. The trial court sustained the State's objection and instructed Watkins that they were "not going to start getting into Mr. Win[n]'s admissions[.]" Prior to Watkins's resting, and outside the jury's presence, Watkins excepted to the trial court's refusal to allow him to introduce Winn's hearsay statements. With respect to the transcript of the recorded conversation, Watkins stated he was prepared to play the actual audiotape if the court desired. The State again lodged a hearsay objection and argued that the hearsay exception relied upon by Watkins only applied when the declarant was available as a witness. The trial court sustained the State's objections to both Winn's written and recorded statements. The transcript of Watkins's and Winn's recorded conversation contains Winn's admission that he stole the truck and trailer. It also explains and generally corroborates Watkins's testimony about the circumstances under which Watkins came to use the truck and trailer. The recorded conversation reflects that Winn admitted that he lied to Watkins about his authority to use the truck. Watkins subpoenaed Winn in order to compel him to testify as a witness at his trial. Winn did not appear, and as a result, Watkins requested that a writ of attachment be issued for Winn; the attempt to execute the writ was unsuccessful. When Watkins's efforts to procure Winn's appearance at trial failed, Watkins filed a motion for a continuance, which the trial court denied. At Watkins's election, the judge assessed Watkins's punishment for the unauthorized use of a motor vehicle conviction. The trial court sentenced Watkins to two years in a state jail facility but suspended the sentence and placed him on community supervision for three years. Watkins's motion for new trial was denied by operation of law. On appeal, Watkins contends the trial court erred by excluding Winn's recorded statement. Applicable Law
An out-of-court statement offered for the truth of the matter asserted is hearsay and generally inadmissible. Tex. R. Evid. 801(d). The Rules of Evidence recognize many exceptions to the general rule that hearsay evidence is inadmissible. Tex. R. Evid. 803(1)-(24). One type of hearsay that may be admitted under these exceptions is: A statement which 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 render invalid a claim by the declarant against another, 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). At trial, the State argued, and the trial court apparently agreed, that the declarant's availability was required in order for this exception to apply. On the contrary, Rule 803's hearsay exception for statements against interest specifically states: "The following are not excluded by the hearsay rule, even though the declarant is available as a witness." Tex. R. Evid. 803. Thus, Winn's availability as a witness at trial should not have been considered as a material factor in determining the admissibility of Winn's recorded statement. See id.; Dewberry v. State, 4 S.W.3d 735, 751 (Tex.Crim.App. 1999). Determining whether a statement is admissible as a statement against interest under Rule 803(24) involves a two-step inquiry. Bingham v. State, 987 S.W.2d 54, 57 (Tex.Crim.App. 1999). First, the trial court determines whether the statement tends to expose the declarant to criminal liability. Id. Second, corroborating evidence must "clearly indicate the trustworthiness of the statement." Tex. R. Evid. 803(24); Bingham, 987 S.W.2d at 57; see also Dewberry, 4 S.W.3d at 751. The party seeking admission of the statement bears the burden to make this showing and "the test is not an easy one." Davis v. State, 872 S.W.2d 743, 749 (Tex.Crim.App. 1994). We review the trial court's decision to admit or exclude evidence of a statement against interest under an abuse of discretion standard. Bingham, 987 S.W.2d at 57; Cunningham v. State, 877 S.W.2d 310, 313 (Tex.Crim.App. 1994). The trial court's ruling will not be reversed as long as it is within the "zone of reasonable disagreement." Salazar v. State, 38 S.W.3d 141, 151 (Tex.Crim.App. 2001). Analysis
A. Trial Court's Exclusion of Statement
In its brief on appeal, the State's argument centers on whether Winn's statement to Watkins was credible, and not on whether the statement subjected Winn to criminal liability. Winn acknowledges in the recorded statement that he committed the theft. The statement also reflects that Winn did not have the owner's authority to use the vehicle. Thus, we conclude that Winn's statement exposed him to criminal liability: the first step of the two-part inquiry is satisfied. See Bingham, 987 S.W.2d at 57. The second step requires the trial judge to evaluate the trustworthiness of the statement. Tex. R. Evid. 803(24); Bingham, 987 S.W.2d at 57. This step exists to deter the admission of a third party's fabricated confession. See Davis, 872 S.W.2d at 748. Factors that a trial court should consider to determine the credibility of a declaration against interest include: "(1) whether guilt of declarant is inconsistent with guilt of the defendant, (2) whether 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 is made, and (6) the existence of independent corroborative facts." Dewberry, 4 S.W.3d at 751. Further, evidence that 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 weighing the credibility of the in-court witness. Cunningham, 877 S.W.2d at 312. In assessing the admissibility of a hearsay statement against penal interest, the Rules of Evidence and precedent allow trial courts discretion in considering a statement's trustworthiness. Id. On appeal, the State contends that the trial court properly excluded the recorded statement because the statement Winn initially gave to the border inspector and the written statement he gave to Rife contain two different accounts of Winn's role regarding the stolen truck. The State also argues that Winn was not available as a witness to confirm the veracity, if any, of the statements. We agree that the trial court could properly consider Winn's changing versions in determining whether his version of the events in his recorded statement was credible. In Winn's statement to the border inspector, Winn implicated Watkins as the person who stole the truck. Then in the affidavit Winn gave to Rife, Watkins's investigator, Winn stated that he obtained the truck from someone named Jesus and represented that neither he nor Watkins knew that the truck had been stolen. In the recorded statement, Winn admitted that he stole the truck and that he misled Watkins about his authority to use the truck. The trial judge was also required to consider and weigh any evidence that corroborated Winn's statement under the Dewberry factors set forth above. Dewberry, 4 S.W.3d at 751. First, there is no evidence in the record to show that Winn and Watkins acted together to steal the truck. Thus, with respect to the theft charge, Winn's recorded statement tends to show that Winn alone stole the truck, which is inconsistent with the claim that Watkins was also guilty of theft. Second, the State, in a separate indictment, charged Winn with theft and unauthorized use of the same truck for which Watkins had been indicted. We conclude that the evidence shows that Winn was in a position to commit the same crimes as those with which Watkins was tried. Third, Watkins recorded Winn's statement after both had been charged with the crimes. Thus, Winn's admissions were statements made at a time when they were relevant to then-existing charges in contrast to potential criminal charges. We conclude that the timing of the statements favors their admissibility. As to the fourth and fifth factors, Winn and Watkins had been friends for several years, and Winn's statement to Watkins occurred in response to Watkins's confronting Winn about the inconsistencies between his first two versions of how he obtained the truck. We conclude that the fourth and fifth factors also favor the admission of Winn's recorded statement. With respect to the sixth and final factor, independent corroborative facts support the credibility of the account of events contained in Winn's recorded statement. Specifically, Winn told Watkins that the keys were in the truck when he stole it. That portion of the statement is consistent with the testimony of Gregory Crow, an employee of the company whose truck was stolen; Crow testified that at the time of this incident company personnel left the keys in the trucks. Additionally, after Winn gave Watkins his final account that he represented to be the truth, Winn told Watkins that he would not tell anyone else the truth. When Watkins told Winn that he was going to tell his attorney what Winn just told him, Winn said, "I'm gonna go hide." Subsequently, Winn refused to appear at trial despite being subpoenaed; and he could not be located to be served with the writ of attachment. Further, Watkins consistently presented the same version of events that lead to his involvement with the truck, and the recorded statement is consistent with Watkins's version of the events. Finally, the entire conversation between Watkins and Winn was recorded. Thus, there is no risk that Watkins might misrepresent what Winn actually said and no risk that Watkins would recount only the portion of Winn's statement that would benefit his defense. We conclude that the sixth factor also tends to favor the admission of Winn's recorded statement. Whether a trial court abuses its discretion in excluding evidence is tested by evaluating whether the trial court was arbitrary or unreasonable. Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim.App. 2003). We uphold a trial court's ruling if it is "reasonably supported by the record and is correct under any theory of law applicable to the case. Carrasco v. State, 154 S.W.3d 127, 129 (Tex.Crim.App. 2005). The record reflects that the State's argument about witness availability likely contributed to the trial court's decision to exclude the statement against interest. See generally Morris v. State, 214 S.W.3d 159, 183-185 (Tex.App.-Beaumont 2006, pet. granted). Additionally, the record fails to reflect that the trial court weighed the relevant factors in determining Winn's statement against interest. See id. The record reflects that the Dewberry factors all favored the admission of Winn's recorded statement. See Dewberry, 4 S.W.3d at 751. We hold that Watkins satisfied his burden to clearly corroborate Winn's statement against interest and that the corroborating circumstances clearly indicated the trustworthiness of Winn's recorded statement. Tex. R. Evid. 803(24). Therefore, we conclude that the trial court's exclusion of Winn's hearsay testimony was error. Manning, 114 S.W.3d at 926. B. Harm Analysis
To prove unauthorized use of a motor vehicle, the State must show that the defendant intentionally or knowingly operated the vehicle without the effective consent of its owner. See Tex. Pen. Code Ann. § 31.07. In McQueen v. State, 781 S.W.2d 600, 604 (Tex.Crim.App. 1989) (en banc), the Court of Criminal Appeals held that this statute required the State to prove that the defendant knowingly and intentionally operated the vehicle and that the defendant knew "that such operation [was] done without the effective consent of the owner." Error is harmless if we are fairly assured that the error did not influence the jury or had but a slight effect after an examination of the record as a whole. See Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000); see also Tex. R. App. P. 44.2(b). With respect to the charge of unauthorized use of the vehicle, the only issue that Watkins contested was whether the evidence proved that he knew he did not have the owner's permission to use the truck. Only two witnesses, Winn and Watkins, knew the circumstances surrounding how Watkins became involved in the truck's use. The exclusion of Winn's account of the events left the jury with only a single witness's testimony favorable to Watkins's defense — that of Watkins himself. Winn's recorded statement is relevant to the issue of Watkins's state of mind, and it is an issue on which the State had the burden of proof. Because Winn's recorded statement would have corroborated and given independent credibility to Watkins's otherwise self-serving testimony that he was misled by Winn about the source of Winn's permission to use the truck, the trial court's ruling was prejudicial. See Ray v. State, 178 S.W.3d 833, 836 (Tex.Crim.App. 2005). The State argues that the error was harmless because admitting Winn's recorded statement would have been cumulative and that Watkins was able to present the substance of Winn's testimony through other means. We disagree. Although Watkins was able to present to the jury his defense through his own testimony and that of his investigator, only Watkins and Winn had personal knowledge of the circumstances that led to Watkins's use of the truck. Since Watkins was the only defendant on trial before this jury, the jurors were likely to give Watkins's own testimony less weight than they likely would have given Winn's recorded statement. Thus, Winn's recorded statement would have incrementally furthered Watkins's evidence. See, e.g., Cohn v. State, 849 S.W.2d 817, 820 (Tex.Crim.App. 1993). Having reviewed the testimony presented at trial, we cannot say with fair assurance that the error in excluding Winn's recorded statement did not influence the jury or that it did not have but a slight effect. See Ray, 178 S.W.3d at 836; see also Tex. R. App. P. 44.2(b). Accordingly, we reverse Watkins's conviction for unauthorized use of a motor vehicle and remand the unauthorized use charge for a new trial. REVERSED AND REMANDED.