Nico Allen-Antonio Cogdill v. State ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00560-CR
Nico Allen-Antonio COGDILL,
Appellant
v.
The STATE of Texas,
Appellee
From the 18th Judicial District Court, Johnson County, Texas
Trial Court No. F45973
Honorable John Edward Neill, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Marialyn Barnard, Justice
Delivered and Filed: September 17, 2014
AFFIRMED
A jury convicted appellant Nico Allen-Antonio Cogdill of capital murder. The trial court
sentenced Cogdill to life imprisonment without the possibility of parole. On appeal, Cogdill
contends: (1) the evidence is insufficient to support his conviction; and (2) the trial court erred in
refusing to admit into evidence certain testimony. We affirm the trial court’s judgment.
BACKGROUND
The evidence establishes Cogdill, whom the evidence suggested was a prospective member
of the Aryan Brotherhood, spent an evening with Jeremy “Bounce” Bukowski, a member of the
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Aryan Brotherhood, and Isaac “Rooster” Milne at a trailer house. The men talked about their past
criminal exploits, including Cogdill’s history of thefts and burglaries. Eventually, Bukowski told
Cogdill about a planned burglary that had been approved by Bukowski’s supervisor in the Aryan
Brotherhood, Richard Ringley. The plan involved breaking into a trailer house owned by Rick
Warren — a forty-nine-year-old invalid. Bukowski and his girlfriend had lived with Mr. Warren,
but were asked to leave when Mr. Warren suspected they were stealing from him. Bukowski asked
Cogdill if he would like to participate in the burglary and Cogdill agreed. According to Cogdill,
Bukowski said no one would get hurt in the course of the burglary.
As agreed, Bukowski, Milne, and Cogdill met later in the evening and drove to Mr.
Warren’s residence. According to Cogdill’s written statement, when the men arrived at Warren’s
residence, Bukowski altered the plan, stating they would kill Mr. Warren and then rob him.
Bukowski allegedly told Cogdill he “couldn’t have loose lips running around here” and Cogdill
“would be shot” if he told anyone. According to Cogdill, Bukowski then asked Milne to pull a
shotgun from the back of the vehicle. The three men approached Warren’s trailer with a crescent
wrench carried by Milne and the shotgun carried by Bukowski. Cogdill claimed Bukowski again
threatened him, saying both Cogdill and his family would be shot if he backed out.
Mr. Warren was asleep in his bedroom with the television on. Cogdill claimed he tried to
avert the murder, saying “we ain’t got to do this, he’s asleep.” Bukowski allegedly told Cogdill
that if he refused to participate then “two bodies [are] going to get it instead of one.” Cogdill stated
Milne then handed him the wrench and he entered the bedroom; Bukowski’s shotgun was still
pointed at him. Cogdill told law enforcement that as he stood over Mr. Warren he inadvertently
roused him when the wrench he held brushed against Mr. Warren’s arm. According to Cogdill,
when Mr. Warren woke up, Cogdill struck him with the wrench “less than five times.” Milne then
began punching Mr. Warren and Cogdill dropped the wrench. Milne picked up the wrench and
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continued beating Mr. Warren. Cogdill said the men then gathered items from the trailer house —
a Fender guitar, a laptop, and television set — and left.
Around the time the men left, Mr. Warren’s sister, Michelle Adams, who lived
approximately twenty yards from her brother’s trailer house, heard her dog barking. She went
over to her brother’s house and found the front door locked, which was unusual. Believing
something was wrong, she ran back to her house to alert her husband. As she was walking back
to her house, she heard “banging from the back door” of her brother’s trailer house. When she ran
around to the back of the trailer she saw that the back door, which had been screwed into place
from the outside, was “barely hanging there.” Ms. Adams said she saw two shadows running away
from the trailer. When she looked inside the trailer she saw her brother face down in his own
blood. Having already called 911, Ms. Adams performed CPR on her brother, but she said she
knew he was already dead.
When she was subsequently interviewed by law enforcement, Ms. Adams told them about
Bukowski and his girlfriend. Ms. Adams believed Bukowski might have been involved because
of the eviction issue, among other things. Later that day, police pulled over Bukowski for a traffic
violation. In Bukowski’s car, they found Mr. Warren’s laptop. Bukowski was arrested. Police
later found Mr. Warren’s guitar and television in a trailer rented by Bukowski. Bukowski gave a
voluntary statement, implicating Milne and Cogdill in the murder of Mr. Warren.
Cogdill ultimately turned himself in to the authorities. In a videotaped interview taken
prior to his written statement, Cogdill insisted for more than an hour he never hit Mr. Warren.
However, after a detective confronted Cogdill with an e-mail Cogdill had prepared to send to the
Cleburne Times Review, an e-mail in which Cogdill admitted he had swung the wrench and grazed
Mr. Warren’s shoulder, Cogdill admitted to striking Mr. Warren. In the e-mail, Cogdill also
claimed the three men had always planned to “knock out” Mr. Warren if he was awake when they
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entered his trailer. Later, when asked again where he struck Mr. Warren, Cogdill gestured toward
his own head.
A detective, who either observed or conducted interviews with all three suspects, testified
Bukowski and Milne contradicted Cogdill’s version of the events. However, as one detective
testified, Cogdill consistently stated Bukowski and Ringley threatened him multiple times, during
and after the murder. Cogdill told authorities he was scared, never wanted to participate in the
murder, and the murder and burglary were Bukowski’s idea.
Cogdill’s claim of duress was never contradicted. Additionally, Richard Wise, a former
neighbor and fellow inmate of Bukowski’s, testified outside the presence of the jury that Bukowski
claimed he used a shotgun to force Cogdill to proceed with the murder. The State objected to
Wise’s testimony, arguing it constituted hearsay. The trial court sustained the State’s objection
and did not allow Wise to testify about what Bukowski allegedly said about the murder.
At the conclusion of the trial, the trial court submitted a jury charge instructing the jury to
consider Cogdill’s culpability as a principal, a party, and as a conspirator. The jury subsequently
found Cogdill guilty of capital murder — murder in the course of a burglary or robbery 1 — and
the judge sentenced him to a term of life imprisonment without the possibility of parole. Cogdill
thereafter perfected this appeal.
ANALYSIS
As noted above, Cogdill raises two issues on appeal. In his first issue, Cogdill contends
his conviction should be overturned because the evidence is insufficient. With regard to his second
1
The jury was instructed it could find Cogdill guilty of capital murder in the event he murdered Mr. Warren during
the course of a robbery or during the course of a burglary of a habitation. As to each, the jury was instructed he could
be found guilty as a principal, party, or conspirator.
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issue, Cogdill contends the trial court erred in refusing to admit into evidence certain testimony
excluded based on the State’s hearsay exception.
Legal Sufficiency
With regard to his sufficiency claim, Cogdill argues there is no evidence to establish he
intentionally caused Mr. Warren’s death during the course of a burglary or robbery, either alone
or with others. He notes there is “no proof from any witness that [he] dealt the blow that killed
Rick Warren . . . the testimony from the medical examiner was that there was no way of knowing
the order that the wounds were inflicted or which was the deadly blow or blows.” He further
argues that because Milne admitted hitting Mr. Warren, the evidence is somehow insufficient as
to his conviction. Cogdill also asserts his conviction must be overturned because there was no
evidence to contradict his claim of duress, which relieves him of any responsibility for the murder.
Standard of Review
When reviewing an appellant’s challenge to the sufficiency of the evidence to support his
conviction, “we view the evidence in the light most favorable to verdict to determine whether ‘any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’” Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012) (quoting Brooks v.
State, 323 S.W.3d 893, 902 n. 19 (Tex. Crim. App. 2010)); see Jackson v. Virginia, 443 U.S. 307,
319 (1979). As the trier of fact, “the jury is the sole judge of the credibility of witnesses and the
weight to be given to their testimonies, and the reviewing court must not usurp this role by
substituting its own judgment for that of the jury.” Montgomery, 369 S.W.3d at 192; see Rios v.
State, 230 S.W.3d 252, 255 (Tex. App.—Waco 2007, pet. ref’d). Our duty is merely to ensure the
evidence supports the verdict. Montgomery, 369 S.W.3d at 192. Thus, even “[w]hen the reviewing
court is faced with a record supporting contradicting inferences, the court must presume that the
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jury resolved any such conflicts in favor of the verdict, even if not explicitly stated in the record.”
Id.
Application
Under section 19.02(b)(1) of the Texas Penal Code, a person commits the offense of
murder if he “intentionally or knowingly causes the death of an individual.” TEX. PENAL CODE
ANN. § 19.02 (b)(1) (West 2011). The offense of murder is elevated to capital murder under
section 19.03 of the Code if the murder is committed “in the course of committing or attempting
to commit . . . burglary, robbery[.]” TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2014). In
this case, the charge authorized the jury to convict appellant of capital murder: (1) as a principal,
(2) as a party under section 7.02(a)(2) of the Texas Penal Code, or (3) as a conspirator under section
7.02(b) of the Penal Code. See TEX. PENAL CODE ANN. §§ 7.02(a)(2), (b) (West 2011).
Whether as principal, party, or conspirator, the jury must find the defendant acted
intentionally, though not necessarily with respect to the resultant murder itself, in order to convict.
“A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result
of his conduct when it is his conscious objective or desire to engage in the conduct or cause the
result.” TEX. PENAL CODE ANN. § 6.03 (a). When assessing a defendant’s intent, “[i]t is both a
common-sense inference and an appellate presumption that a person intends the natural
consequences of his acts.” Ex parte Thompson, 179 S.W.3d 549, 556 n.18 (Tex. Crim. App. 2005).
Cogdill’s Culpability as Principal
In his written statement, Cogdill admitted he agreed when Bukowski asked if he wanted to
make some money. Cogdill agreed to break into Mr. Warren’s trailer to steal property. Moreover,
Cogdill knew the plan was to render Mr. Warren unconscious in the event he was awake when the
three entered the trailer. Cogdill also acknowledged that he knew Bukowski and Milne had killed
people in the past. He also conceded Milne broached the idea of “beating up” Mr. Warren, and
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this idea came up before they left for the trailer house. Additionally, the trio took a large crescent
wrench and a shotgun with them.
According to Cogdill, just before they arrived at the trailer, Bukowski told Cogdill they
were going to kill Mr. Warren. Cogdill claimed in his interview, and in a proposed e-mail to the
Cleburne Times Review, that he tried to back out, but Bukowski threatened to shoot him. After
the trio entered the trailer, Milne gave Cogdill the wrench and Bukowski told them to go into the
bedroom and “strike” Mr. Warren. Cogdill claimed in his videotaped interview that he dropped
the wrench and left the trailer. For over an hour, he denied hitting Mr. Warren with the wrench or
his fists. Cogdill told law enforcement Milne alone beat Mr. Warren with his fists and the wrench,
despite Cogdill’s pleas to stop. Cogdill specifically stated he was not in the room when Milne beat
Mr. Warren and denied there was any blood on his clothing. Cogdill claimed that if there was
blood on his clothing, it was transferred from Milne’s clothing when Bukowski took their clothes
and bundled them together.
However, after the investigating officers told Cogdill they had his proposed e-mail to the
newspaper and information from Bukowski and Milne, Cogdill changed his story with regard to
his involvement in the murder. He first admitted that when Mr. Warren woke up — while he was
standing over him — he was startled and struck Mr. Warren on the shoulder or neck with the
wrench, “but that was it.” Then, upon further questioning Cogdill confessed to hitting Mr. Warren
with the wrench more than once after he sat up. Cogdill maintained his blows could not have
killed Mr. Warren; rather, it was Milne’s blows that caused the death.
In his written statement, which was written after the videotaped interview, and in the e-
mail to the newspaper, Cogdill stated he “hit” or “grazed” Mr. Warren’s shoulder with the wrench,
causing him to wake up. According to Cogdill’s written statement, when Mr. Warren woke up
Cogdill “swung” the wrench, hitting Mr. Warren in the head up to four times. Thereafter, he
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dropped the wrench, which was picked up by Milne, who continued beating Mr. Warren. Cogdill
admitted taking items from the trailer and placing them in the car. Thereafter, Cogdill stayed with
Ringley for two days. He then stayed at a house in Dallas for approximately three days, finally
returning to Waxahachie and turning himself in to authorities.
The State also introduced evidence showing that blood found on a t-shirt worn by Cogdill
belonged to Mr. Warren. The t-shirt was found during a search of Bukowski’s residence.
Apparently, after Bukowski took Cogdill’s and Milne’s clothes, Bukowski kept them. Mr.
Warren’s blood was also found on a crescent wrench discovered in Bukowski’s residence.
We hold a rational trier of fact could have concluded Cogdill, acting as principal,
intentionally caused the death of Mr. Warren — a death caused during the commission of a
burglary or robbery — by repeatedly bludgeoning Mr. Warren with a crescent wrench.
Cogdill contends that even if the evidence establishes he struck Mr. Warren, “there was no
way of knowing which was the deadly blow or blows.” This contention relates to the issue of
causation, and we hold that it does not render the evidence insufficient to support the capital
murder conviction.
Under section 6.04(a) of the Texas Penal Code, “[a] person is criminally responsible if the
result would not have occurred but for his conduct, operating either alone or concurrently with
another cause, unless the concurrent cause was clearly sufficient to produce the result and the
conduct of the actor clearly insufficient.” TEX. PENAL CODE ANN. § 6.04(a) (West 2011). Given
Cogdill’s statement about striking Mr. Warren with the crescent wrench a number of times, we
cannot say “the concurrent cause was clearly sufficient to produce the result and the conduct of
the actor clearly insufficient.” See id. In other words, we cannot say the blows delivered by Milne
were sufficient to cause Mr. Warren’s death and the blows of Cogdill were clearly insufficient to
cause the death. See id. The jury could have rationally found that Mr. Warren’s death would not
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have occurred but for Cogdill’s conduct as an actor, operating alone or concurrently with another
party to the crime.
Cogdill’s Culpability as a Party
Even if we were to hold the evidence was legally insufficient to prove Cogdill guilty of the
offense as a principal, we hold the State nevertheless presented evidence sufficient for a rational
trier of fact to find Cogdill guilty as a party to the offense. Section 7.01(a) of the Texas Penal
Code provides that “[a] person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is criminally responsible,
or by both.” Id. § 7.01(a). Subsection (b) provides that each party to the offense may be charged
with the offense. Id. § 7.01(b). A person is “criminally responsible” for an offense committed by
the conduct of another if, “acting with intent to promote or assist the commission of the offense,
he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.”
Id. § 7.02(a)(2).
Cogdill’s admissions establish his intent to assist in the offense. Before leaving for Mr.
Warren’s trailer, and before any alleged threats were made, Cogdill knew the trio was going to
burglarize the trailer or commit a robbery in the event Mr. Warren was home. He also knew the
plan included knocking Mr. Warren out in the event he was home and awake. Cogdill knew his
companions had killed people in the past. He also knew weapons were placed in the vehicle.
As detailed above, Cogdill entered the bedroom with Milne, each standing beside the bed
where Mr. Warren was sleeping. When Milne gave Cogdill the wrench, Cogdill struck Mr. Warren
several times. Mr. Warren’s blood was found on Cogdill’s shirt. Cogdill admitted he was present
when Milne beat Mr. Warren with his fists and then with the same wrench used by Cogdill.
The evidence noted above is legally sufficient to establish Cogdill’s guilt in this case as a
party. The jury could have concluded Cogdill’s initial striking of Mr. Warren was in aid of the
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robbery or burglary, as well as the murder. Although Cogdill consistently claimed Milne beat Mr.
Warren to death, he admitted that he too struck Mr. Warren with the crescent wrench. Bludgeoning
a person with a crescent wrench naturally assists a third party’s murder of the same person when
it occurs during the same event. Moreover, Cogdill admitted removing property belonging to Mr.
Warren from the trailer and placing it in the vehicle used by the trio. Accordingly, we hold the
jury could have found Cogdill aided Milne, “with intent to promote or assist the commission of
the offense.” Id.
Cogdill’s Culpability as a Conspirator
Finally, even if we determined the evidence was legally insufficient to find Cogdill guilty
of the offense of capital murder as a principal or a party, the evidence was certainly sufficient to
find him guilty of the offense as a conspirator. Section 7.02(b) of the Penal Code states: “If, in the
attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the
conspirators, all conspirators are guilty of the felony actually committed, though having no intent
to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that
should have been anticipated as a result of the carrying out of the conspiracy.” Id. § 7.02(b). A
person participates in a criminal conspiracy “if, with intent that a felony be committed: (1) he
agrees with one or more persons that they or one or more of them engage in conduct that would
constitute an offense; and (2) he or one or more of them performs an overt act in pursuance of the
agreement.” Id. § 15.02(a).
It is undisputed that Cogdill, Bukowski, and Milne agreed to burglarize Mr. Warren’s
trailer or rob Mr. Warren if he was home. In his interview with investigators, Cogdill even
admitted the men intended to “knock” Mr. Warren out if he was awake or awoke during the
burglary or robbery. In fact, in every version of events proffered by Cogdill, from the e-mail to
his oral and written statements, Cogdill consistently admits he went with Bukowski and Milne to
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Mr. Warren’s trailer with the intent to commit a felony, i.e., to take property belonging to Mr.
Warren. Cogdill did this despite knowledge that the other men had admittedly killed people in the
past. He admitted the men brought weapons with them, admitted he and Milne struck Mr. Warren
about the head and shoulders until he was dead, and admitted the three of them left with property
stolen from the residence.
The laptop computer stolen from Mr. Warren’s trailer was found in Bukowski’s car, and
the stolen television set and guitar were found in Bukowski’s residence. And, as noted above,
Cogdill’s bloody t-shirt, containing Mr. Warren’s blood, placed Cogdill at the scene of the crime.
Based on Cogdill’s various admissions and the corresponding physical evidence, the jury
may have reasonably believed Cogdill not only agreed and intended to engage in conduct
constituting a felony offense, i.e. burglary, robbery, and perhaps assault, but also he and others
performed overt acts in pursuance of the agreement: traveling to Mr. Warren’s trailer, entering the
trailer without permission, removing Mr. Warren’s property from the trailer without permission,
and striking Mr. Warren with fists and a crescent wrench. The jury could have rationally concluded
one or more of the men murdered Mr. Warren in the course of committing the underlying felony
of burglary or robbery by bludgeoning Mr. Warren with the crescent wrench. Because the murder
of Mr. Warren was a foreseeable result of the plan agreed to by Cogdill — particularly given what
he knew about his companions — a rational trier of fact could have could have found Cogdill
guilty of capital murder as a conspirator. As a conspirator in the felony offenses of burglary or
robbery, Cogdill was guilty of capital murder even if he did not intend to kill Mr. Warren. See id.
Cogdill’s Affirmative Defense of Duress
Cogdill contends the evidence was sufficient to establish his affirmative defense of duress.
Accordingly, the jury should not have found him guilty of the offense of capital murder. In support
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of this contention, Cogdill argues that because the evidence of duress was uncontroverted, the jury
had no choice but to find in his favor on this defensive issue. We disagree.
Duress is an affirmative defense that requires the defendant to prove he committed the
offense “because he was compelled to do so by threat of imminent death or serious bodily injury
to himself or another.” Id. § 8.05(a). It is, on its face, a confession-and-avoidance or justification
defense because it does not negate any element of the offense, including intent, but rather excuses
what would otherwise constitute criminal conduct. Rodriguez v. State, 368 S.W.3d 821, 824 (Tex.
App.—Houston [14th Dist.] 2012, no pet.); see Walters v. State, 247 S.W.3d 204, 209 n.20 (Tex.
Crim. App. 2007) (noting duress is a defense to conviction). The defendant has the burden to
prove duress by a preponderance of the evidence. See TEX. PENAL CODE ANN. § 2.04(d) (West
2011). We find there are two problems with Cogdill’s duress argument.
First, it is black letter law that a defendant cannot establish that an act is justified without
first admitting to the act itself. Rodriguez, 368 S.W.3d at 824. “A defendant’s failure to testify,
stipulate, or otherwise proffer defensive evidence admitting that he ‘engaged in the proscribed
conduct’ prevents the defendant from benefitting from the defense of duress.” Id. (citing Shaw v.
State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007) (holding defendant is entitled to jury
instruction on justification defense only when his defensive evidence essentially admits to every
element of offense, including culpable mental state)). Here, Cogdill did not submit evidence that
he committed the capital murder. Rather, Cogdill’s admissions, such as they were, came from
evidence introduced by the State. Although Cogdill attempted to introduce evidence from a
cellmate of Bukowski’s to establish Bukowski’s threats, the evidence was excluded on hearsay
grounds. Accordingly, Cogdill neither testified, stipulated, nor proffered defensive evidence
admitting to his commission of the offense of capital murder. Accordingly, he was not entitled to
a duress instruction in the first instance.
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Second, even though Cogdill’s claim that Bukowski threatened to kill him if he backed out
or ran away — as set out in the evidence submitted by the State — was uncontroverted, the jury
was not compelled to believe Cogdill. The only evidence that Bukowski threatened Cogdill with
imminent death or serious bodily injury came from Cogdill himself. As set out in the standard of
review, “the jury is the sole judge of the credibility of witnesses and the weight to be given to their
testimonies.” Montgomery, 369 S.W.3d at 192; Rios, 230 S.W.3d at 255. Moreover, the jury may
choose to believe all, some, or none of the evidence presented by the parties. Chambers v. State,
805 S.W.2d 459, 461 (Tex. Crim. App. 1991); Rios, 230 S.W.3d at 255.
It is clear from Cogdill’s various statements — the e-mail, the videotaped interview, the
written statement — that his claims were fluid, changing when he was confronted with additional
information or was subject to additional questions from authorities. It would have been completely
rational for the jury to find his claim of duress unbelievable given that it appeared Cogdill’s intent
was to place himself in the best light possible under the circumstances. Accordingly, we hold the
jury was entitled to disbelieve Cogdill’s claims of duress — even if it believed other portions of
his recorded and written statement. We therefore overrule Cogdill’s contention regarding the
defense of duress.
Hearsay
In his hearsay issue, Cogdill argues the trial court erred in excluding testimony from Wise
— a former neighbor of Bukowski’s who ended up in a cell next to Bukowski after Bukowski was
arrested for the murder of Mr. Warren — regarding Bukowski’s claim that Bukowski used a
shotgun to force Cogdill and Milne to murder Mr. Warren. Cogdill argues the evidence should
not have been excluded based on the State’s hearsay objection because the excluded statement was
one showing Bukowski’s state of mind and emotion, which is an exception to the hearsay rule.
See TEX. R. EVID. 803(3). Again, we disagree.
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Standard of Review
A trial court’s ruling on the admissibility of evidence is subject to an abuse of discretion
standard of review. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006); Kelley v.
State, 22 S.W.3d 642, 644 (Tex. App.—Waco 2000, pet. ref’d). A reviewing court will not reverse
a trial court’s ruling on the admissibility of evidence so long as it falls within the zone of reasonable
disagreement. Id. We would err in applying the standard of review if we reversed a trial court’s
decision on admissibility of evidence solely because we disagreed with it. Rodriguez, 203 S.W.3d
at 841.
Application
Here, Cogdill sought to introduce evidence from one of Bukowski’s cellmates, Wise.
Bukowski was arrested the afternoon following the murder. At some point following his arrest,
he shared a cell with Wise. According to Wise, at some point after his arrest, Bukowski told Wise
he used a shotgun to force Cogdill and Milne to kill Mr. Warren. Cogdill sought to introduce the
following testimony from Wise:
Mr. Bukowski told me that the night that — that all three of them, they went out to
the — to the guy’s house. He said that — that at first he had told Mr. Cogdill and
Mr. Isaac Milne that it was just to go out there to rob the guy of some laptops, some
computer software, and some musical instruments and stuff. He said whenever
they got there he said — he said the guy that they went to rob used to be an old
roommate of his and said that he told them that the guy was a convicted pedophilier
(sic), and whenever they got out there he pulled a shotgun from his trunk, he held
it on Mr. Cogdill and Mr. Milne and forced them to proceed with the – with the
murder.
The State objected to Wise’s testimony, arguing it was hearsay. Cogdill asserted the
statement was subject to an exception to the hearsay rule, specifically Rule 803(3) of the Texas
Rules of Evidence. The trial court disagreed with Cogdill and sustained the State’s objection. The
jury never heard Wise’s testimony.
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“‘Hearsay’ is a statement, other than the one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” TEX. R. EVID. 801(d).
Hearsay is inadmissible unless a statute or rule of evidence permits its admission. Id. R. 802. Rule
803(3), entitled “Then Existing Mental, Emotional, or Physical Condition,” sets out one exception
to the hearsay rule. See id. R. 803(3). Under this rule, “[a] statement of the declarant’s then
existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive,
design, mental feeling, pain, or bodily health)” is not hearsay. Id. However, this exception does
not include “a statement of memory or belief to prove the fact remembered or believed unless it
relates to the execution, revocation, identification, or terms of declarant’s will.” Id.
Cogdill argued below, and argues here, that Wise’s testimony was admissible under the
exception set out in Rule 803(3) because Wise’s testimony, “reveals Bukowski’s state of mind and
the hate involved with the offense.” First, we disagree with Cogdill’s interpretation of Bukowski’s
statement. The statements allegedly made by Bukowski are merely a rendition of the events that
took place on the night of the murder, i.e., out-of-court statements of events that occurred, and as
such are hearsay and not admissible under Rule 803(3). See Barnum v. State, 7 S.W.3d 782, 790–
91 (Tex. App.—Amarillo 1999, pet. ref’d) (holding that written statement that “Today I found the
attached paper. The paper with figures was written by my husband . . .” was not admissible under
Rule 803(3) because it was merely a rendition of events that occurred).
Second, numerous courts have held that for the exception set forth in Rule 803(3) to apply,
the statement must relate to future, not past, conduct. In Glover v. State, the defendant was
convicted of aggravated sexual assault of a child. 102 S.W.3d 754, 758 (Tex. App.—Texarkana
2002, pet. ref’d). The evidence showed the defendant, who was twenty-six, had sexual relations
with the fourteen-year-old victim. Id. On appeal, the defendant complained about the introduction
of certain testimony over his hearsay objection. Id. at 761.
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During trial, the State sought to introduce testimony from a mother regarding statements
her daughter allegedly made during a confrontation regarding the daughter’s relationship with the
defendant. Id. 761–62. When the defendant objected, the State argued, among other things, that
the testimony was admissible under Rule 803(3), and the trial court agreed. Id. at 762. On appeal,
the court of appeals disagreed, holding the mother’s statements about what her daughter told her
— I snuck out of the house, he picked me up last Sunday, he took me to his apartment, we had sex,
we danced, we listened to music, we had sex on the floor, we used a condom — were merely a
description of past facts, seeking to prove the defendant and the daughter had sexual relations. Id.
The court held that evidence that seeks merely to establish a remembered fact is specifically
excluded from the state of mind exception set out in Rule 803(3). Id. Moreover, the court held
that to the extent the statements implicated the defendant’s intent, plan, motive, etc., they related
to past conduct, not future conduct, as required for Rule 803(3) to apply. Id. at 762–63 (citing
Jones v. State, 515 S.W.2d 126, 129 (Tex. Crim. App. 1974) (holding hearsay inadmissible under
state of mind exception because statement did not reflect intent or motive for future action, but
only discussed preceding events)); see also Hernandez v. State, 171 S.W.3d 347, 356 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref’d). Accordingly, the appellate court held the trial court erred
in admitting the statements based on Rule 803(3). Glover, 102 S.W.3d at 763.
Wise’s testimony relating Bukowski’s statements is no different than that of the mother in
Glover. His testimony describes statements allegedly made by Bukowski concerning actions
allegedly undertaken by Bukowski in the past, not any future actions. As such, they are not
admissible under the state of mind exception of Rule 803(3). Accordingly, we hold the trial court
did not err in refusing to admit Wise’s testimony.
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CONCLUSION
Based on the foregoing, we overrule Cogdill’s issues on appeal and affirm the trial court’s
judgment.
Marialyn Barnard, Justice
Do Not Publish
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