Deedra Michelle Grubbs v. State ( 2015 )

ACCEPTED
12-14-00150-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
7/21/2015 4:24:53 PM
CATHY LUSK
CLERK
12-14-00150-CR
FILED IN
12th COURT OF APPEALS
IN THE TWELFTH COURT OF APPEALS OF TEXAS TYLER, TEXAS
7/21/2015 4:24:53 PM
TYLER, TEXAS CATHY S. LUSK
Clerk
DEEDRA GRUBBS
Appellant
v.
THE STATE OF TEXAS
Appellee
On Appeal from Cause No. 14-CR-19,075
in the 273RD Judicial District Court of Shelby County, Texas
APPELLEE’S BRIEF
123rd JUDICIAL DISTRICT ATTORNEY’S OFFICE
Kenneth Florence, District Attorney
Lead Counsel
State Bar No. 00790698
200 San Augustine Street - Suite 12
Center, Texas 75935
(936) 598-2489
(936) 598-4106 Fax
TABLE OF CONTENTS
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Reversible Error Standard Generally Applicable to the Case . . . . . . . . . . . . . . . . . 3
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Issue A: Hearsay Evidence Exclusion (letters) . . . . . . . . . . . . . . . . . . . . . . . 3
Declaration Against Penal Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Prior Consistent Statements, Corroboration and Improper Bolstering .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Issue B: Hearsay Evidence Exclusion (co-defendant’s in-car video
statement) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ii
TABLE OF AUTHORITIES
CASES
Alford v. State, 400 S.W.3d 924 (Tex.Crim.App. 2013) . . . . . . . . . . . . . . . . . . . . 13
Bigon v. State, 252 S.W.3d 360 (Tex.Crim.App.2008) . . . . . . . . . . . . . . . . . . . . . . 3
Bingham v. State, 987 S.W.2d 54 (Tex.Crim.App. 1999) . . . . . . . . . . . . . . . . 2, 7, 9
Bolden v. State, 967 S.W.2d 895 (Tex.App. —Fort Worth 1998) . . . . . . .14, 15, 16
Busby v. State, 253 S.W.3d 661 (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . .16
Coffin v. State, 885 S.W.2d 140 (Tex.Crim.App.1994) . . . . . . . . . . . . . . . . . . . . . .2
Cofield v. State, 891 S.W.2d 952 (Tex.Crim.App.1994) . . . . . . . . . . . . . . . . . . . . .7
Cohn v. State, 849 S.W.2d 817 (Tex.Crim.App.1993) . . . . . . . . . . . . . . . . . . . . . .15
Cunningham v. State, 877 S.W.2d 310 (Tex.Crim.App.1994) . . . . . . . . . . . . . . . . 2
Davis v. State, 872 S.W.2d 743 (Tex.Crim.App.1994) . . . . . . . . . . . . . . . . . . . . 8, 9
Dewberry, 4 S.W.3d 735 (Tex.Crim.App. 1999) . . . . . . . . . . . . . . . . . . . . . .8, 9, 10
Harris v. State, 790 S.W.2d 568 (Tex.Crim.App. 1989) . . . . . . . . . . . . . . . . . . 3, 12
Holland v. State, 761 S.W.2d 307 (Tex. Crim. App. 1988) . . . . . . . . . . . . . . . . . . .6
In re R.A.L., 291 S.W.3d 438 (Tex.App.—Texarkana 2009) . . . . . . . . . . . . . . . . .16
Lawton v. State, 913 S.W.2d 542 (Tex.Crim.App.1995) . . . . . . . . . . . . . . . . . . . . .2
Matchett v. State, 941 S.W.2d 922 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . 6
McCraw v. Maris, 828 S.W.2d 756 (Tex. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Motilla v. State, 78 S.W.3d 352 (Tex.Crim.App. 2002) . . . . . . . . . . . . . . . . . . 3, 12
Meyers v. State, 865 S.W.2d 523 (Tex.App.—Houston [14th Dist.] 1993) . . . . . 15
Ray v. State, 764 S.W.2d 406 (Tex.App.—Houston [14th Dist.] 1988) . . . . . .15, 16
Snowden v. State, 353 S.W.3d 815 (Tex.Crim.App. 2011) . . . . . . . . . . . . . . . . 3, 12
State v. Duran, 396 S.W.3d 563 (Tex.Crim.App.2013) . . . . . . . . . . . . . . . . . . . . .13
State v. Kelly, 204 S.W.3d 808 (Tex.Crim.App.2006) . . . . . . . . . . . . . . . . . . . . . .13
Turrubiate v. State, 399 S.W.3d 147 (Tex.Crim.App.2013) . . . . . . . . . . . . . . . . . 13
Walter v. State, 267 S.W.3d 883 (Tex.Crim.App. 2008) . . . . . . . . . . . .8, 10, 11, 12
White v. Illinois, 502 U.S. 346, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992) . . . . . . . . .9
Wigiert v. State, 948 S.W.2d 54 (Tex.App.—Fort Worth 1997) . . . . . . . . . . . . . . .2
Williams v. State, 927 S.W.2d 752 (Tex.App.—El Paso 1996) . . . . . . . . . . . . . . .15
Williamson v. U.S., 512 U.S. 594, 114 S. Ct. 2431, 129 L. Ed. 2d 476 (1994) . . . . . 7
STATUTES
VERNON’S TEX. CODE CRIM. PROC., ART. 1.14(a) . . . . . . . . . . . . . . . . . . . . .6
iii
RULES OF COURT
TEX. R. APP. PRO. 38.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
TEX. R. APP. PRO. 44.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 3, 7, 12
TEX.R.EVID. 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 6, 12
TEX.R.EVID. 401. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
TEX.R.EVID. 613© . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
TEX.R.EVID. 801(e)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13, 14, 15
TEX.R.EVID. 802 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
TEX.R.EVID. 803(1)-(24) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
TEX.R.EVID. 803(24) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 8, 10
TEX.R.EVID. 804(b)(1)-(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
iv
The State of Texas hereby presents this its Appellee’s Brief on appeal.
Summary of the Argument
In the instant case, Appellant has raised two (2) issues involving alleged
evidentiary rule violations, neither of which have merit. Even if the issues had
merit, which they do not, none of the issues would have affected substantial rights
of the defendant such as to constitute reversible error under TEX. R. APP. PRO.
44.2(b) (hereafter “TRAP”); see also TEX.R.EVID. 103 (hereafter “TRE”).
Appellant’s two issues both deal with the exclusion of hearsay evidence.
The exclusion of the hearsay evidence was proper and within the sound discretion
of the trial court. The defense had asserted that certain hearsay statements of
Appellant’s co-defendant were admissible, either as a declaration against penal
interest or that they were “corroborating”.
Both statements (letters and video statement of co-defendant) were not
admissible because the declarant himself testified in Appellant’s trial thus
rendering the hearsay statements unnecessary and duplicitous, the admission of the
evidence would have been improper bolstering as the declarant’s credibility on
this issue was not attacked, and the statements, at least as to Appellant’s
involvement in the murder, were not trustworthy nor corroborated as the declarant
had a motive to be untruthful to protect his wife, the Appellant.
1
Furthermore, the evidentiary rule basis upon which Appellant seeks to rely for
admission of both of the out of court statements was not satisfied for either issue.
Standard of Review
Appellee urges that in reviewing the alleged evidentiary rule violations at
issue in this case, the standard of review is: Abuse of Discretion.
Specifically, for declarations against penal interest:
“The standard for an appellate court's review of a trial court's decision to admit
or exclude a hearsay statement under Rule 803(24) is whether the trial court
abused its discretion. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994);
Cunningham v. State, 877 S.W.2d 310, 313 (Tex.Crim.App.1994)." Bingham v.
State, 987 S.W.2d 54, 57 (Tex.Crim.App. 1999).
Specifically, for prior consistent statements used for corroboration:
“The trial court's determination of the admissibility of evidence under Rule
801(e)(1)(B) is reviewed under an abuse of discretion standard”. See Lawton v.
State, 913 S.W.2d 542, 561 (Tex.Crim.App.1995); Wigiert v. State, 948 S.W.2d
54, 56 (Tex.App.—Fort Worth 1997, no pet.)(prior statement of co-conspirator to
rehabilitate).
Under the abuse of discretion standard, if the trial court's ruling was within
the zone of reasonable disagreement, an appellate court will not disturb the ruling.
2
Bigon v. State, 252 S.W.3d 360, 367 (Tex.Crim.App.2008).
Reversible Error Standard Generally Applicable to the Case
In this case, both of Appellant’s issues expressly rely on evidentiary rules,
and not on any state or federal constitutional provisions. Appellee asserts that
neither issue has merit. In any event, if the court were to rule otherwise, Appellant
cannot show harm due to the otherwise overwhelming nature of the evidence
proving her guilt1. The standard set forth in Texas Rule of Appellate Procedure
44.2(b) would apply, if indeed there were error: any error that does not affect
substantial rights must be disregarded.
Argument
Issue A: Hearsay Evidence Exclusion (letters of co-defendant)
In her first issue, Appellant states the trial court erred when it failed to admit
Defense Exhibits 7-12. (9 RR 78-80). Defense Exhibits 7-12 purport to be letters
written by Appellant’s co-defendant, her husband, authored from the co-
defendant’s jail cell, after the murder and assaults had taken place. (8 RR 52-55).
1
An appellate court may consider overwhelming evidence of an Appellant's guilt in it's
harm analysis under TRAP 44.2(b). Motilla v. State, 78 S.W.3d 352, 360 (Tex.Crim.App. 2002);
Harris v. State, 790 S.W.2d 568 (Tex.Crim.App. 1989)(overruled on other grounds in Snowden
v. State, 353 S.W.3d 815 (Tex.Crim.App. 2011)).
3
Co-defendant Bobbie Grubbs testified at length during Appellant Deedra
Grubbs’ trial on June 3, 2015 that he forced Appellant to commit the crimes2. (8
RR 9-113, passim3). Waiting until the next day, June 4, 2015, after the witness
had completed his testimony and was released from the trial and sent back to the
Texas Department of Criminal Justice - Criminal Institutions Division to serve his
2
The fact Bobbie Grubbs testified directly negates Appellant’s claim that “Grubbs was
prevented from providing exculpatory and mitigating evidence to the jury by and through these
statements against interest made by Bobbie Grubbs.” Appellant’s Brief at 14-15.
3
8 RR 34 - declarant testifies about forcing Appellant and her stating “Bobbie, no.”; 8 RR
35 - declarant pointed a gun at Appellant and hit her in the ribs with it to force Appellant to take
declarant to an earlier home invasion; 8 RR 35 - Appellant was trying to warn the home invasion
victim by jumping up and down; 8 RR 36-37 - Appellant was running around freaked out and
scared/panicked; 8 RR 38 - declarant states to appellant “If you do anything, and tell anybody, I’ll
kill your family, I’ll kill our kids, I’ll kill you, I’ll kill everybody.”; 8 RR 40 - declarant states to
appellant at a temporary place of safety “I told her, if she said anything, I was going to shoot her
and her kids, too.”; 8 RR 44 - at a gold dealer trying to sell stolen property “I told her if she got
her phone, if I seen her on the phone, I was going in there and shoot everybody in there. And she
cashed it in—against her will.”; 8 RR 42-43 - “I had to say something so she would try to stay
with me instead of trying to go away from me.”; 8 RR 43 - declarant “tore” the phone up in the
hotel to control Appellant; 8 RR 44 - declarant made Appellant write a will “I was going to go
ahead and put her out of her misery.”; 8 RR 45 - declarant testified he intended to kill Appellant
and testified he told her so; 8 RR 45 - Question: “Bobbie, did you and Deedra ever agree on any
of this stuff to happen?” Answer: “She didn’t. It was—it was all me. I was just making her
come along.”; 8 RR 46 - Question: “So any plan was your plan?” Answer: “It was all me.”; 8 RR
47 - on day of shooting “I made her sit beside me” smoking a cigarette on porch of hotel room; 8
RR 47 - “Stay here. Don’t get up.”; 8 RR 48 - declarant made her get in car after shooting,
Appellant was saying “stop, stop, stop, stop.”; 8 RR 59 - declarant told Appellant everything to
do (on cross-examination with no charge of recent fabrication); 8 RR 63 - Appellant tried to warn
victim; 8 RR 65 - Appellant did not go voluntarily; 8 RR 66 - declarant had a gun on Appellant
the whole time; 8 RR 66-67 - declarant threatened to kill Appellant, her family, and everyone she
knew; 8 RR 82 - declarant wrote letters to Appellant asking her to lie to protect him at trial; 8 RR
90 - declarant tied Appellant up, he tied her hands to her feet so she could not leave; 8 RR 96 -
declarant: “I never discussed anything with Deedra (about the crimes). I just told her what to
do.”; 8 RR 105 - “She did what I told her to do.”; 8 RR 111 - “If she called the cops, I would
shoot her.”
4
own life without parole sentence for his role in these heinous crimes, and after
four other intervening witnesses had testified4, and in fact after all witnesses had
testified before the petit jury, the defense only then attempted to have Bobbie
Grubbs’ self-serving letters admitted into evidence. (9 RR 78-80). Defense
Counsel: “I want to put some things into evidence.” (9 RR 77-78). There was no
witness on the stand at the time.
The letters had actually come up during the declarant’s live in-court
testimony the day before, but the defense counsel stated “Judge, I’ve got some
letters I want to authenticate but not offer at this time.5” (8 RR 52-53, 54-55).
The trial judge stated “You are not offering them at this time, correct?” (8 RR 55)
Whereupon defense counsel stated “Not at this time.” (8 RR 55). The witness
was then passed without ever offering the exhibits into evidence. (8 RR 56).
Ultimately, the witness was finally passed, not subject to recall, without the
defense attempting to introduce the hearsay statements. (8 RR 113 - Defense: “I
pass the witness....Your Honor, so far as we’re concerned, he can go back” (to
prison).) The State had previously stated that it would review the statements later,
4
(8 RR 113-157; 9 RR 1-76).
5
That strategy, had it worked, would have deprived the State the opportunity to cross-
examine the declarant regarding the statements. However, the defense is not allowed to wait
until the next day to offer the statements after the witness has already left the stand.
5
in the event they are offered, to save the jury time. (8 RR 55 - State: “Then I’ll
review them later. That way we don’t take the jury’s time.” Defense: “Okay”.)
The hearsay statements should have been attempted to be admitted during the
declarant’s testimony on direct or re-direct, not the next day after all testimony had
been taken in the case. By not offering the statements in a timely fashion with a
witness on the stand, Appellant has waived/procedurally defaulted this issue. Any
right of a criminal defendant can be waived. VERNON’S TEX. CODE CRIM. PROC.,
art. 1.14(a); Matchett v. State, 941 S.W.2d 922, 930-31 (Tex. Crim. App. 1996);
Holland v. State, 761 S.W.2d 307, 313 (Tex. Crim. App. 1988).
In any event, at the time the statements were actually offered, the State
objected on hearsay grounds, that the letters were only written after the crime (in
anticipation of litigation), and that the letters did not meet the standard for a co-
conspirator admission in furtherance of a conspiracy or to rebut a charge of recent
fabrication. (9 RR 77-79). Defense counsel argued for admission on the basis of
“declaration against penal interest” and for “corroboration.” (9 RR 79-81).
The Law Applicable to the Issue
Texas Rule of Evidence 103: Rulings on Evidence
“(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling
which admits or excludes evidence unless a substantial right of the party is
6
affected, and....[a timely specific objection is required].” This standard uses the
same language as TRAP 44.2(b).
Hearsay Rule
Generally, “hearsay is not admissible....” TRE 802. There are 27
exceptions to the rule however. TRE 803(1)-(24)(unavailability of witness
immaterial); TRE 804(b)(1)-(3)(unavailability required).
Declaration Against Penal Interest (TRE 803(24))
"Any determination regarding the admissibility of a statement in accordance
with rule 803(24) requires a two-step inquiry. First, the trial court must determine
whether the statement in question tends to expose the declarant to criminal
liability. Williamson v. U.S., 512 U.S. 594, 599-601, 114 S. Ct. 2431, 2435, 129
L. Ed. 2d 476 (1994); Cofield v. State, 891 S.W.2d 952, 956 (Tex.Crim.App.1994).
Second, the trial court must determine if there are corroborating circumstances that
clearly indicate the trustworthiness of the statement. TEX.R. EVID. 803(24). If
both these criteria are met, then rule 803(24) is satisfied.” Bingham v. State, 987
S.W.2d 54, 57 (Tex.Crim.App. 1999).
7
After Bingham, the Texas Court of Criminal Appeals refined the two-step
test analysis in Dewberry v. State6, and more recently, Walter v. State7.
The Dewberry court wrote: "In order for a declaration against interest to be
admissible under Rule 803(24) of the Texas Rules of Criminal Evidence, the
statement must be self-inculpatory with corroborating circumstances to
indicate the trustworthiness of the statements. Dewberry, 4 S.W.3d 735, 751
(Tex.Crim.App. 1999).
Continuing in Dewberry, the Court of Criminal Appeals detailed a six part
test for corroborating circumstances:
“"We discussed the requirements for corroboration of a statement against interest
in Davis v. State, 872 S.W.2d 743 (Tex.Crim.App.1994). The corroboration must
be sufficiently convincing to clearly indicate the trustworthiness of the statement.
A trial court should consider a number of factors: (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
6
4 S.W.3d 735 (Tex.Crim.App. 1999).
7
267 S.W.3d 883 (Tex.Crim.App. 2008).
8
corroborative facts. See Bingham, 987 S.W.2d at 58; Davis, 872 S.W.2d at 749."
Dewberry, 4 S.W.3d at 751. Evidence which undermines the reliability of the
statement as well as evidence corroborating its trustworthiness may be considered.
Bingham, 987 S.W.2d at 58. "In White v. Illinois, 502 U.S. 346, 112 S. Ct. 736,
116 L. Ed. 2d 848 (1992), ...."A statement that qualifies for admission under a
'firmly rooted' hearsay exception is so trustworthy that adversarial testing can be
expected to add little to its reliability." Id. at 357, 112 S. Ct. 736." Dewberry, 4
S.W.3d at 752.
Herein, factors (3), (4) and (5) clearly weighed against admission.
Regarding (3) and (4), the statements were not spontaneous, but were letters
drafted after the crime had been committed, from a jail cell written in anticipation
of trial, and defendant admitted he had written letters to Appellant asking her to lie
for him8. Regarding (5), the fact that Appellant and her co-defendant were
husband and wife9 also militates in favor of exclusion due to the relationship
between the parties. The declarant was merely trying to protect his wife from
conviction. The trial testimony of the declarant included the following exchange
at 8 RR 81-82:
8
8 RR 81-82.
9
Appellant’s Brief at 9.
9
Question: “In those letters you discussed the upcoming trials and what each of you
might say at the upcoming trials, isn’t that correct?”
Answer: “Yes.”
Question: “You asked her to try to protect you at trial, didn’t you?”
Answer: “Yes.”
The foregoing exchange clearly indicates that Defense Exhibits 7-12 were not
trustworthy, and therefore, their exclusion from evidence was proper.
Finally, Walter v. State details what “self-inclupatory”, the first part of the
two part Dewberry test, entails. See Walter v. State, 267 S.W.3d 883
(Tex.Crim.App. 2008):
"We granted review to determine whether the entire conversation was admissible
as a statement against interest under Texas Rule of Evidence 803(24) or only
those specific portions that were actually against [declarant’s] penal interest."
"We conclude that only those statements that are directly against the speaker's
penal interest (including " blame-sharing" statements) are admissible under Rule
803(24)." Walter, 267 S.W.3d at 886. The Walter Court also stressed the need for
sufficient corroborating circumstances that clearly indicate the trustworthiness of
the statement. Id. at 891.
10
The Walter Court concluded that only the self-inculpatory aspects of a
declaration against penal interest are deemed reliable. Blame shifting and neutral
comments do not have heightened reliability. The Walter Court wrote:
"The fact that a person is making a broadly self-inculpatory confession does not
make more credible the confession's non-self-inculpatory parts. One of the most
effective ways to lie is to mix falsehood with truth, especially truth that seems
particularly persuasive because of its self-inculpatory nature. [citation omitted]
In distinguishing between self-inculpatory remarks and those remarks that are
collateral to the self-inculpatory ones, ...the fact that a statement is
self-inculpatory does make it more reliable; but the fact that a statement is
collateral to a self-inculpatory statement says nothing at all about the collateral
statement's reliability. We see no reason why collateral statements, even ones that
are neutral as to interest ... should be treated any differently from other hearsay
statements that are generally excluded. [citation omitted]” Walter, 267 S.W.3d at
893. (Italics emphasis added).
"The most faithful reading of [the Rule] is that it does not allow admission
of non-self-inculpatory statements, even if they are made within a broader
narrative that is generally self-inculpatory." Id. “Thus, a trial court may not just
assume that a particular statement is self-inculpatory merely because it is part of a
11
fuller narrative that is, in its entirety, self-inculpatory." Id.
Walter also noted with approval other courts’ conclusions: “statements that
are most likely to be untrustworthy-those statements consciously made
with an eye toward later criminal litigation....” Id. at 897 (citations omitted).
Therefore, Defense Exhibits 7-12, which purport to minimize Appellant’s
responsibility for her role in these crimes were properly excluded because that
portion of the statements were not “self-inculpatory” as to Appellant, but were
neutral at best or blame shifting to an already convicted declarant, who had written
the letters after the crime and in anticipation of litigation. The relevant portion of
the declarant’s statements were not self-inculpatory, were not corroborated, and
were not trustworthy at all.
The trial court properly excluded Defense Exhibits 7-12, and their exclusion
was not error, but even if it were, due to the overwhelming evidence of
Appellant’s guilt, she could never show that a “substantial right was affected.”
TRAP 44.2(b) (standard of review); TRE 103(standard of review); Motilla v.
State, 78 S.W.3d 352, 360 (Tex.Crim.App. 2002)(overwhelming evidence); Harris
v. State, 790 S.W.2d 568 (Tex.Crim.App. 1989)(overwhelming evidence)
(overruled on other grounds in Snowden v. State, 353 S.W.3d 815 (Tex.Crim.App.
2011)).
12
Prior Consistent Statements, Corroboration, and Improper Bolstering
The other purported basis for the admission of Defense Exhibits 7-12 was
for “corroboration.” (9 RR 79-81). The law concerning corroboration by prior
consistent statement is found in the following rules of evidence:
TRE 613( c ): Prior Consistent Statements of Witnesses. “A prior statement
of a witness which is consistent with the testimony of the witness is inadmissible
except as provided in 801(e)(1)(B).”
TRE 801
“(e) Statements Which are not Hearsay10. A statement is not hearsay if:
(1) Prior Statement by witness. The declarant testifies at the trial or
hearing and is subject to cross-examination concerning the statement, and the
statement is:...
(B) consistent with the declarant’s testimony and is offered to
rebut an express or implied charge against the declarant of recent fabrication or
improper influence or motive....”
(2) Admission by a party-opponent. The statement is offered against
10
Although the State’s objection was, in part, on hearsay grounds, the trial court’s ruling
must be upheld on any applicable legal theory. Alford v. State, 400 S.W.3d 924, 928-929
(Tex.Crim.App. 2013); Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.Crim.App.2013); State v.
Duran, 396 S.W.3d 563, 574 (Tex.Crim.App.2013); State v. Kelly, 204 S.W.3d 808, 818
(Tex.Crim.App.2006).
13
a party and is:...
(E) a statement by a co-conspirator of a party during the course
and in furtherance of the conspiracy.”
Stated more concisely in case law than under the rules:
“Rule 801(e)(1)(B) states that a prior consistent statement is admissible if:
(1) the declarant testifies at trial;
(2) the declarant is subject to cross-examination concerning the statement;
(3) the prior statement is consistent with the declarant's testimony at trial; and
(4) the prior statement is offered to rebut an express or implied charge against the
declarant of recent fabrication or improper motive or influence.
See TEX.R.CRIM. EVID. 801(e)(1)(B)." Bolden v. State, 967 S.W.2d 895, 898
(Tex.App. —Fort Worth 1998).
Under these rules, a prior consistent statement comes into evidence only to
rebut a charge of recent fabrication, which was not done in this case11, or was a
statement made in furtherance of and during a conspiracy, which was also not the
situation in this case12. Furthermore, as Defense Exhibits 7-12 were not offered
into evidence until after all witnesses had testified and declarant had already been
11
There was no claim of recent fabrication to make previous consistent story admissible (9
RR 79).
12
There was no co-conspirator admission in furtherance of the conspiracy (9 RR 77-78).
14
released, the declarant was not subject to cross-examination concerning the
statements, which availability for cross-examination is a condition precedent to
admissibility under TRE 801(e)(1). See TRE 801, supra; Bolden, supra.
In reality, what the defense was trying to do by attempting to admit Defense
Exhibits 7-12, was to “improperly bolster” the testimony of the declarant.
“Bolstering occurs when additional evidence is used to add truthfulness or greater
weight to earlier, unimpeached evidence offered by the same party. See Williams v.
State, 927 S.W.2d 752, 763 (Tex.App.—El Paso 1996, pet. ref'd). Stated
differently, "bolstering" refers to any evidence that is offered for the sole purpose
of convincing the fact finder that a particular witness or source of evidence is
worthy of credit, without substantively contributing to make the existence of a fact
that is of consequence to the determination of the action more or less probable
than it would be without the evidence. See Cohn v. State, 849 S.W.2d 817, 819-20
(Tex.Crim.App.1993); see also TEX.R.EVID. 401." Bolden v. State, 967 S.W.2d
895, 898 n. 1 (Tex.App. —Fort Worth 1998).
In order to assert on appeal that a prior statement was inadmissible because
it did not predate a motive to fabricate, a litigant must have objected on that basis
to the trial court. See Meyers v. State, 865 S.W.2d 523, 524-25
(Tex.App.—Houston [14th Dist.] 1993, pet. ref'd); see also Ray v. State, 764
15
S.W.2d 406, 411 (Tex.App.—Houston [14 th Dist.] 1988, pet. ref'd); Bolden v.
State, 967 S.W.2d at 899. In this case, the State properly objected to the
statements on this basis as well. (9 RR 77-78).
Clearly, Defense Exhibits 7-12 were not admissible as “corroboration” for
all of the reasons set forth above.
Even under the civil law cases cited by Appellant in her brief at P. 7-8, In re
R.A.L., 291 S.W.3d 438 (Tex.App.—Texarkana 2009, no pet.) and McCraw v.
Maris, 828 S.W.2d 756, 757 (Tex. 1992), the Appellant has failed to meet that
standard. Appellant makes no argument as to how the alleged trial court error was
“reasonably calculated to cause and probably did cause rendition of an improper
judgment.” Id. Therefore, this issue may also be considered to be inadequately
briefed, and thus, present nothing for review. See TEX. R. APP. PROC. 38.1(e), (f),
(h), (I); Busby v. State, 253 S.W.3d 661, 673 (Tex.Crim.App. 2008).
The first issue should be overruled.
Issue B: Hearsay Evidence Exclusion (co-defendant's in-car video statements)
In her second issue, Appellant claims that the trial court erred when it
excluded her co-conspirator’s in-car video statements made while the declarant
was being transported to jail after the crimes had been committed and after
Appellant and her co-defendant had been captured pursuant to a manhunt.
16
The legal principles set forth in Issue A are germane to this issue, and therefore,
those citations and argument are incorporated herein as if fully set forth as above.
The video was attempted to be introduced as Defense Exhibit 15. (Appellant’s
Brief at 16; 9 RR 80-82).
As in “Issue A”, Appellant again asserts that Defense Exhibit 15 should
have been admitted as a declaration against penal interest and for corroboration.
However, the analysis is exactly the same. Video hearsay statements as to
Appellant’s role are not self-inculpatory as to declarant; the statements were made
in anticipation of litigation and after the crime was over; the statements were not
trustworthy; the statements attempted to minimize blame for declarant’s wife,
which is a motive to be untruthful; declarant was not subject to cross-examination
as the video was only sought to be admitted after all witnesses had testified and
been released; and the State noted that declarant’s statements had been consistent
all along and that there was no charge of recent fabrication (9 RR 79). Therefore,
for the reasons that Defense Exhibits 7-12 were properly excluded, Defense
Exhibit 15 was likewise properly excluded.
Appellant’s second issue should be overruled.
17
PRAYER
WHEREFORE for the reasons set forth above, Appellant’s judgment and
sentence should be in all things AFFIRMED.
Respectfully submitted,
123rd JUDICIAL DISTRICT ATTORNEY
/S/ Kenneth B. Florence
STATE’S ATTORNEY TB#00790698
200 San Augustine Street ~ Suite 12
Center, Texas 75935
(936) 598-2489 Fax (936) 598-4106
CERTIFICATE OF COMPLIANCE
The computer generated Appellee’s Brief in this case contains 4554 words.
Appellee certifies he relied on the word count of the computer program used to
prepare the document. /S/ Kenneth Florence
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Appellee’s Brief, as
related above, was served upon, Jeff Adams, Attorney for Appellant, 119
Logansport Street, Center, Texas 75935, by E-file Texas, on this the 21st day of
July 2015. /S/ Kenneth Florence
18