Edwin Kendale Thomas v. State ( 1992 )

Thomas v. State

IN THE

TENTH COURT OF APPEALS

No. 10-92-083-CR

     EDWIN KENDALE THOMAS,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 85th District Court

Brazos County, Texas

Trial Court # 20,996-85

O P I N I O N

      Edwin Thomas was arrested and incarcerated on September 27, 1991, for possession of a controlled substance. On January 23, 1992, he was presented to a grand jury and indicted. One month later Thomas applied to the district court for a writ of habeas corpus, seeking either reduction of bail or release on personal bond pursuant to article 17.151 of the Texas Code of Criminal Procedure. The district court denied relief. Thomas now comes before this Court asserting that the trial court erred in denying his writ of habeas corpus by violating article 17.151.

      In Danziger v. State, 786 S.W.2d 723 (Tex. Crim. App. 1990), Danziger appealed the trial court's denial of his application for writ of habeas corpus seeking release on bail pursuant to article 17.151. The Texas Court of Criminal Appeals concluded that it was unnecessary to address the merits of Danziger's allegations because they became moot when he was convicted of aggravated sexual assault and given a life sentence. Id. at 724.

      The case at hand is similar to Danziger. Thomas complains of pre-trial confinement, but has since been convicted and sentenced to fourteen years imprisonment for possession of a controlled substance. Based on these facts, we find it unnecessary to address whether the district court erred in denying Thomas' writ of habeas corpus. See id. We overrule his single point of error.

      We affirm the judgment.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed July 15, 1992

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y did not want to move.

          A hearing was held outside the presence of the jury. Stella testified that the note was discovered by her mother, Ola Mae, sometime in 1996. The assaults by Burks were alleged to have been committed in May of 1996. Stella also testified that the note was in S. O.’s handwriting. Ola Mae, with whom the victims and their other sisters live, did not testify.

          S. O. denied that she wrote the note. She testified that she had a friend by the name to whom the note was addressed. But, she specifically denied writing that friend this or any other note. When examined at Planned Parenthood, she denied that she had engaged in sexual intercourse with anyone. After a subsequent visit to a different doctor in Temple, S. O. claimed that she was touched by Burks’s hands and his “private” but denied that she had intercourse with him. However, she described the acts which Burks did to her. Based upon S. O.’s description of Burks’s acts and the resulting consequences; difficulty walking, discomfort, and vaginal bleeding, a question was raised as to what her definition of intercourse would have been. The note is crudely worded and uses terms that adults would equate to sexual intercourse. It is not dated. There are no references from which a date could be determined. It makes a vague reference to a location in East Waco where S. O. had engaged in sexual intercourse with an unidentified “sexy boy.” It is “addressed” to a friend of S. O.’s, with the admonition, “Don’t show [any]body.” There is nothing about the note that assists in the identity of the other person involved in the sexual act.

Standard of Review

          When admitting or excluding evidence, the trial court is allowed to use its discretion. Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990); Castaldo v. State, 32 S.W.3d 413, 422 (Tex. App.—Waco 2000, pet. filed). As an appellate court, we should not set aside the trial court’s ruling absent a showing on the record that the trial court abused its discretion. Id.

Hearsay Exception

          The note was an out of court statement offered to prove the truth of the matter asserted; that being, S. O. had previous sexual relations. It is hearsay and inadmissible, unless admissible under another statute or rule. Tex. R. Evid. 802. To avoid application of this rule, Burks contends that the exhibit was admissible as an exception to the hearsay rule as a statement against interest. Burks argues that the note would subject S. O. to “hatred, ridicule, or disgrace,” thus making it admissible under Rule 803(24). This exception provides:

(24) Statement Against Interest. 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).

          Whether a statement is in fact against the interest of the declarant must be determined from the circumstances of each case. Drone v. State, 908 S.W.2d 608, 612 (Tex. App.—Austin 1995, pet. ref’d). To be excluded on the basis it would subject the declarant to hatred, ridicule or disgrace, the statement must be in the context of the declarant’s social interests. Owens v. State, 916 S.W.2d 713, 718 (Tex. App.—Waco 1996, no pet.). And, to qualify as an exception under Rule 803(24), the statement must be against the declarant’s interest at the time it was made. Bell v. State, 877 S.W.2d 21, 24 n.2 (Tex. App.—Dallas 1994, pet. ref’d).

          Based upon a reading of the entire note, and evaluating the circumstances as to its alleged origin and subject matter, the note would not be admissible under this exception to the hearsay rule. If this is S. O.’s note, it is to a friend, and she is boasting about having a sexual relationship with a “sexy boy.” This is not the type note that would be admissible over the State’s hearsay objection as a statement against interest. Burks ignores that the note was not intended by S. O. to be publicly disclosed and was made to a friend in confidence. Thus, for the purposes for which the statement was made and at the time it was made, it was not of a nature that would have subjected her to “hatred, ridicule, or disgrace, that a reasonable person in declarant's position would not have made the statement unless believing it to be true.” Tex. R. Evid. 803(24). The trial court properly sustained the hearsay objection.

Rule 412

          We have determined that the evidence was properly excluded on the basis of the State’s hearsay objection. Burks argues that the note is admissible under Rule 412, the rape shield evidence rule. His argument is without merit. Rule 412 does not provide Burks with a vehicle to overcome the exclusion of inadmissible hearsay evidence. Tex. R. Evid. 412.

Conclusion

          Having determined that the evidence was properly excluded as hearsay and rejected Burks’s argument that the evidence is admissible under Rule 412, Burks’s sole issue is overruled. Burks’s convictions are affirmed.

                                                                                 TOM GRAY

                                                                                 Justice

Before Chief Justice Davis,

          Justice Vance, and

          Justice Gray

Affirmed

Opinion delivered and filed February 28, 2001

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