Alaniz, Leroy Flores

NO. 957-15
COURT OF CRIMINAL APPEALS OF TEXAS ORIGINAL
TEX. R. APP. P. 68.2(a)
LEROY FLORES ALANIZ,
Appellant SEP 25 2015
FILED IN
COURT OF CRIMINAL APPEALS v.
Sc? 2 5 2315
THE STATE OF TEXAS,
Abel Acosta, Cierk Appellee
On Petition for Discretionary Review
Ffrom the Eleventh Court of Appeals
in No.. 11-12-00352-CR Affirming the Conviction
in No. D-37,9 21 from the
358th Judicial District Court
of Ector County, Texas
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Leroy Flores Alaniz
TDCJ No. 1826767
French M. Robertson Unit
12071 FM 3522
Abilene, Texas 79601
Appellant, pro se
IDENTITIES OF PARTIES AND COUNSEL
APPELLANT: Leroy Flores Alaniz
APPELLEE: State of Texas
COUNSEL OF RECORD ON APPEAL:
FOR APPELLANT: E. Jason Leach
Law Office of E. Jason Leach
3800 E. 42nd, Suite 605
Odessa, Texas 79762
SBN: 00796938
FOR APPELLEE: Mr. R.N. (Bobby) Bland, District Attorney
Ector County District Attorney
300 N. Grant, Rm. 305
Odessa, Texas 79761
SBN: 00790319
COUNSEL OF RECORD AT TRIAL:
FOR DEFENDANT: E. Jason Leach
Law Office of E. Jason Leach
3800 E. 42nd, Suite 605
Odessa, Texas 79762
SBN: 00796938
STATE OF TEXAS Greg Connor
Asst. Ector County District Attorney
300 N. Grant, Rm. 305
Odessa, Texas 79761
SBN: 24054878
Lee McClendon
Asst. Ector County District Attorney
300 N. Grant, Rm. 305
Odessa, Texas 79761
SBN: 13408640
JUDGE PRESIDING; Honorable Bill McCoy
Judge, 338th Judicial District Court
Ector County, Texas
TABLE OF CONTENTS
Identity of Judge i
Table of Contents ii
Index of Authorities iii
Statement Regarding Oral Argument 1
Statement of the Case 2
Statement of Procedural History 3
Ground for Review 1 4
Did the court of appeals err by concluding that the critical
portions of the hearsay statement admitted at trial as im
peachment evidence were admissible under the exception pro
vided by Tex. R. Evid. 803(24)?
Reason for Review 5
Statement of Facts , 6-7
Argument 8-13
Prayer 13
Unsworn Declaration 14
Certificate of Service 15
Certificate of Compliance 15
Appendix " I6
ii
INDEX OF AUTHORITIES
CASES
Blake v. State,
971 S.W.2d 451 (Tex.Crim.App. 1998) 12
Hughes v. State,
4 S.W.3d 1 (1999) 8
STATUTES
Tex. R. App. P. 38.1 8
Tex. R. App. P. 66.3(f) 5
Tex. R. Evid. 803(24) 4, 7, 9, 13
in
II. STATEMENT REGARDING ORAL ARGUMENT
Because Appellant is proceeding pro se as an incarcerated
prisoner, oral argument is not requested.
V. STATEMENT OF THE CASE
Alaniz was charged in a two-count indictment with the offens
es of capital murder and murder (I C.R. at 6-7). He proceeded
to trial and a jury convicted him of the offense of capital
murder (I C.R. at 123). He was sentenced to life imprisonment
in the Texas Department of Criminal Justice (I C.R. at 133-134).
VI. STATEMENT OF PROCEDURAL HISTORY
Appellant's conviction was affirmed by the Eleventh Court
of Appeals in an opinion delivered July 9, 2015. No motrion
for rehearing was filed.
GROUND FOR REVIEW 1
DID THE COURT OF APPEALS ERR BY CONCLUDING THAT THE CRITICAL
PORTIONS OF THE HEARSAY STATEMENT ADMITTED AT TRIAL AS IMPEACH
MENT EVIDENCE WERE ADMISSIBLE UNDER THE EXCEPTION PROVIDED BY
TEX. R. EVID. 803(24)?
REASON FOR REVIEW
The court of appeals has so far departed from the accepted
and usual course of judicial proceedings, or so far sanctioned
such a departure by a lower court, as to call for an exercise
of the Court of Criminal Appeals' power of supervision. Tex:.
R. App. P. 66.3(f).
Statement of Facts: ^
Alaniz contends that the trial court abused its discretion
when it allowed the State to place otherwise inadmissible evidence
(in the form of Sonny Alaniz's testimony and prior statement)
before the jury. Sonny Alaniz's ("Alaniz") typewritten statement
was introduced into evidence and used.as substantive evidence
by the State of Texas in its final argument.
Sonny Alaniz, the nephew of Appellant, Leroy Alaniz, was
called to testify on behalf of the State of Texas (VI R.R. at
23). A hearing was held outside the presence of the jury to
determine the voluntariness of the statement he had given as
a 17-year-old (VI R.R. at 24). During this hearing it was disco
vered he would deny any memory of his prior statements.
He consistently stated "I don't remember" when asked about
a prior statement he had given (VI R.R. at 26). When asked about
a robbery he stated "I don't remember", when asked about a gun
he stated "I don't remember" (VI R.R. at 26). When he was asked
about a robbery he had allegedly done with his uncle Leroy he
stated "I don't remember" (VI R.R. at 27). Eventually, he stated
that he had no memory of giving any statement to the police
(VI R.R. at 28).
Counsel objected, pursuant to Rule 403 of the Texas Rules
of Evidence, to the State calling Sonny Alaniz simply to place
into evidence a statement that he was going to deny having any
memory of (VI R.R. at 32-36). The trial court overruled the
6
objection but granted a running objection to counsel so he would
not be required to object after every single question by the
State (VI R.R. at 42).
Even though the prosecution and trial court knew, before
the jury was ever brought back into the courtroom that Sonny
Alaniz would deny any memory of the statement, questioning on
this topic was nevertheless permitted.
The court of appeals overruled the issue without considering
whether the hearsay statement of Sonny Alaniz constituted impro
per impeachment evidence based on its determination that the
critical portions of Sonny Alaniz's written statement were admis
sible in their own right as substantive evidence under Tex.
Rule of Evidence 803(24) (Memo. Op. at 2-12).
Argument
The court of appeals' disposition so far departs from the
accepted and usual course of judicial proceedings, or so far
sanctions such a departure by the lower trial court, as to call
for an exercise of the Court of Criminal Appeals' supervisory
power.
First, the rules of appellate procedure require the court
of appeals to decide the issue as briefed by the parties in
accordance with Rule 38.1, with which the parties in this case
have complied. The parties briefed this case on whether or not
Sonny Alaniz's ("Alaniz") prior written statement, admitted
into evidence in this case on an impeachment theory, was proper
impeachment evidence. However, the court of appeals did not
reach this issue. Instead, it disposed of the case based on
erroneous conclusion that the trial court would not have abused
its discretion had it permitted admission of Alaniz's statement
under the hearsay exception provided by Rule of Evidence 803(24)
(Memo. Op. at 10-11).
Second, the Court's decision in Hughes v. State, 4 S.W.3d
1 (Tex.Crim.App. 1999), requires the trial court, upon a proper
Rule 403 objection, to conduct an "improper impeachment" analysis
whenever a party attempts to admit a prior inconsistent statement
under the guise of impeachment when the party's primary intent
in calling the witness is to introduce inadmissible hearsay.
The trial court did not comply with the mandates of Hughes,
but instead, permitted the State to offer Alaniz's written state
ment into evidence in absence of anything within the record
that the State had any other purpose for presenting Alaniz's
statement other than to place before the jury evidence which
was otherwise inadmissible. Because the court of appeals did
not consider whether the written statement constituted improper
impeachment evidence, the issue raised by Appellant has yet
to be decided.
Court of appeals' conclusion that critical portions of statement
were admissible was erroneous.
In disposing of the case, the court of appeals concluded
that the critical portions of Alaniz's written statement were
admissible under the hearsay exception provided by Rule of Evi
dence 803(24). This conclusion is not fairly supported by the
record and thus constitutes reversible error.
In pertinent part, Rule 803(24) permits the admission of
a statement that a reasonable person in the declarant's position
would have made only if the person believed it to be true because,
when made, it had so great a tendency to expose the declarant
to criminal liability, and is supported by corroborating circum
stances that clearly indicate its trustworthiness, if it is
offered in a criminal case as one that tends to expose the de
clarant to criminal liability. TEX. R. EVID. 803(24) (Vernon's
2015).
Here, the critical portions of Alaniz's written statement
do not have any great tendency to expose him to criminal lia
bility.
The court of appeals opined that Alaniz stated that he drove
Appellant to the Diamond Shamrock station, waited on him, and
then drove him away from that station, and that this account
by Alaniz would have subjected him to criminal liability. However,
there's no evidence in the record, save Alaniz's hearsay state
ment, that a robbery or attempted robbery of the Diamond Shamrock
station on South Crane Street, had actually occurred on or around
November 9, 1991. No police report of any such robbery or at
tempted robbery was presented by the State,t and no other witness
testimony was put forth corroborating Alaniz's statement that
such a robbery/attempted roobery had occurred. There was no
evidence put forth of any witness having seen Appellant in,
at, or around the said Diamond Shamrock station as alleged by
Alaniz. Nor was there any evidence put on that a sawed-off .22
rifle had been reportedly found in the vicinity of the said
station, nor any evidence coming from any witness having seen
the stolen truck, alleged by Alaniz to have been his and Appel
lant's mode of transportation during the alleged Diamond Shamrock
robbery, in the vicinity of the said station around the date
in question. No evidence exists in the record that a follow-
up investigation by police based on Alaniz's written statement
had produced any tangible evidence corroborating his assertions
that he and Appellant had committed a robbery/attempted robbery
of the said station, finally, the detective who went to question
Alaniz at the Ector County Youth Center was not there to question
10
him about the robbery/attempted robbery alleged in..theostate-
ment.
In short, there's absolutely no evidence in the record from
any source which corroborates the critical portions of Alaniz's
hearsay statement. In absence of any such corroborating evidence,
Alaniz's statement did not and does not expose him to criminal
liability, as evidenced by the fact that he nor anyone else
was ever charged with the alleged robbery/attempted robbery.
Three portions of Alaniz's statement should have provided
the court of appeals with significant indication that the state
ment is not trustworthy: (1) Alaniz's averment that the detect
ive had indicated that Alaniz was suspected by authorities as
being involved in the Party House Lounge robbery; (2) Alaniz
averring that the detective had just revealed to him the details
of the Party House Lounge robbery, including that Appellant
and Paul (Escandon) allegedly had been involved, that a person
had died from injuries received during that robbery, and that
a sawed-off .22 rifle had been used; and (3) Alaniz averring
that when he and Appellant allegedly had went to rob the Diamond
Shamrock, Appellant supposedly told him that he did not rob
or attempt to rob the station.
The detective revealing to Alaniz that he was suspected
by authorities of being an accomplice to a robbery/homicide
gives rise to Alaniz's statement being viewed with caution where
Texas law has long recognized that accomplices often have incent
ive to lie, such as to avoid punishment or to shift blame onto
11
someone else. See Blake v. State, 971 S.W.2d 451, 454 (Tex.Crim.
App. 1998) (accomplice witness rule reflects legislative deter
mination that accomplice testimony implicating another person
should be viewed with measure of caution, because accomplices
often have incentive to lie, such as to avoid punishment or
shift blame to another person). Being as he was already aware
of specific details of the Party House Lounge robbery, due to
Detective Thomas' revelations, Alaniz could have easily fabri
cated the storyy of a purported robbery of a Diamond Shamrock
to appease Det. Thomas by appearing to "cooperatively" provide
information useful to Det. Thomas' investigation while also
directing any suspicion away from himself by bolstering the
detective's purported belief that Alaniz was not actually involv
ed in the Party House Lounge robbery.
Moreover, Alaniz stating that Appellant told him that he
did not "do" the Diamond Shamrock robbery upon Alaniz supposedly
picking him back up away from the station could have easily
been an attempt by Alaniz to make his Diamond Shamrock story
appear more credible to the detective where occurrence of such
a robbery/attempted robbery of the specified Diamond Shamrock
could easily be dispelled simply by the detective reviewing
police records and/or the detective interviewing the owner and
employees of the specified Diamond Shamrock.
Certainly, these aspects of Alaniz's statement raise signifi
cant question as to the trustworthiness of the statement, and,
at a minimum, remove any "clear" indication that the statement
12
is trustworthy. See Rule 803(24)(B).
It could easily have been that Alaniz was well aware that
his story of he and Appellant robbing the said Diamond Shamrock
was a fabrication that did not in any significant way expose
him to criminal liability where it could not be corroborated
by any tangible evidence of the station being robbed as he pur
ported because it simply never occurred.
For these reasons, the trial court would have abused its
discretion had it determined that the critical portions of the
hearsay statement of Alaniz were admissible under the Rule 803
(24) exception. For the same reasons, the court of appeals abused
its discretion in determining that the critical portions of
Alaniz's hearsay statement were admissible in their own right
as substantive' evidence, and in concluding that it need not
.consider whether paragraphs 5, 6 and 7 of Alaniz's statement
constituted improper impeachment evidence (Memo. Op. at 11).
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays that the
Honorable Court grant discretionary review in this case. Appel
lant prays for general relief.
13
Respectfully submitted,
(^?\4aF>u <^5\.fca$J>
rov "Flores
Leroy ^lc Alaniz
TDCJ No. 1826767
French M. Robertson Unit
12071 FM 3522
Abilene, TX 79601
Appellant, pro se
UNSWORN DECLARATION
I, Leroy Flores Alaniz, TDCJ No. 1826767, being presently
incarcerated at the French M. Robertson Unit of the Texas Depart
ment of Criminal Justice-Correctional Institutions Division,
located in Jones County, Texas, hereby declare under penalty
of perjury that the foregoing is true and correct, and placed
in the .„ outgoing prison mailbox on this (J>. j day of September,
2015, to be mailed U.S. Mail, first-class postage prepaid, ad
dressed to:
Court of Criminal Appeals of Texas
P.O. Box 12308, Capitol Station
Austin, TX 78711-2308
Executed on this the oL D day of September, 2015.
^TTT^'l ^yyii^ (S!Ulv.-
Leroy Flores Alaniz
14
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the fore
going petition for discretionary review has been duly served
upon counsel for the opposing party to this case by placing
same in the outgoing prison mailbox on the ^/yO day of Septem
ber, 2015, to be mailed first-class postage prepaid addressed
to:
Michael Bloch
Assistant District Attorney
Ector County Courthouse
300 N. Grant, Room 305
Odessa, TX 79761
"^py-jC^n &\&s>
Leroy Frores Alaniz
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing pleading consists of
less than 1,300 lines of monospaced typeface at 10 charaters
per inch.
15
APPENDIX
Memorandum Opinion
Leroy Flores Alaniz vs. The State of Texas
Eleventh Court of Appeals
No. 11-12-00352-CR
(July 9, 2015)
16
Opinion filed July 9, 2015
In The
Client!) Court of gppeate
No. 11-12-00352-CR
LEROY FLORES ALANIZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 358th District Court
Ector County, Texas
Trial Court Cause No. D-37,921
MEMORANDUM OPINION
Thejury found Leroy Flores Alaniz, Appellant, guilty of capital murder for a
murder that occurred over twenty years prior to the date of trial. Because the State
did not seek the death penalty, punishment was assessed at a mandatory term of life
imprisonment in the Institutional Division of the Texas Department of Criminal
Justice. In his sole issue on appeal, Appellant challenges the admission of a written
statement given by his nephew to the police. We affirm.
Background Facts
Appellant was indicted in 2010 for the capital murder and murder of Larry
Alan Willsey, which occurred in 1991. The State alleged that Appellant went to the
Party House Lounge in Odessa accompanied by another Hispanic male. One carried
a bat, while the other carried a sawed-off gun. The two men instructed the bartender
to give them all of the money in the cash register. The men also instructed the
patrons of the bar to get on the floor. Willsey apparently moved too slowly getting
down on the floor to satisfy the men. In response, the man with the bat struck
Willsey with the bat and knocked him to the floor. Both men repeatedly struck and
kicked Willsey while he was on the floor. The men eventually left the bar with the
money from the cash register and money from a football pool being conducted at the
bar. Willsey subsequently died from his injuries.
At the trial, which occurred more than twenty years later, the State called the
responding and investigating officers to testify, as well as a criminalist to compare
the DNA from Appellant with a ski mask worn by one of the men. The bartender
on duty that night and the owner of the Party House Lounge also testified.
The State called Sonny Alaniz as its last witness. Alaniz1 is the nephew of
Appellant. In January 1992, a police officer spoke with Alaniz about the robbery at
the Party House Lounge. Alaniz executed a notarized witness statement wherein he
stated, among otherthings, that Appellant possessed a .22 caliber sawed-offrifle and
that Alaniz participated in another robbery with Appellant at a Diamond Shamrock
station.
Analysis
In his sole issue, Appellant challenges the admission of Alaniz's witness
statement because "both the State and the [trial] court had prior knowledge that the
'For the sake of clarity, we will refer to Appellant as "Appellant," and we will refer to his nephew
as "Alaniz."
witness would not recall the statement." Appellant argues that the State used the
prior witness statement "under the guise of impeachment for the primary purpose of
placing substantive evidence before the jury which is not otherwise admissible."
Appellant cites Hughes v. State, 4 S.W.3d 1, 4 (Tex. Crim. App. 1999), in support
of this proposition. We review a trial court's ruling on admissibility of evidence for
an abuse of discretion. See Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App.
2010). We will uphold the trial court's decision unless it lies outside the zone of
reasonable disagreement. Salazarv. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App.
2001).
The court in Hughes addressed those situations wherein a party attempts to
admit a prior inconsistent statement under the guise of impeachment when the
party's primary intent in calling the witness is to introduce inadmissible hearsay.
Hughes, 4 S.W.3d at 4. The court concluded that the proper objection in this
circumstance is an objection under Rule 403 fqr the trial court to conduct a balancing
test under the rule. Id. at 4-5; see Tex. R. Evid. 403. "[A] trial court abuses its
discretion under Rule 403 when it allows the State to admit impeachment evidence
for the primary purpose of placing evidence before the jury that was otherwise
inadmissible." Id. at 5. Factors to consider in the analysis include whether the State
was aware its witness would testify unfavorably, whether the State was able to elicit
any favorable testimony from the witness, and whether the State had a legitimate
purpose for eliciting the prior inconsistent statement. See id. at4-7; see also Kelly v.
State, 60 S.W.3d 299, 301 (Tex. App.—Dallas 2001, no pet.).
Onthe morning ofthe lastdayof trial, theproceedings began with Appellant's
trial counsel informing the court that he believed that the State intended to call
Alanizas a witness. Counsel stated that the prosecutors "know now ... that [Alaniz]
is going to deny his statement that he gave." Counsel further stated, "I have a
[R]ule 403 objection to them calling him when they know specifically that they want
3
to impeach him with a statement that would otherwise be inadmissible that
implicates my client." See Tex. R. Evid. 403. One of the prosecutors responded by
informing the trial court that he had no information or indication that Alaniz would
deny his statement. The prosecutor further asserted that he had no intention of
impeaching Alaniz with the written statement and that he had "every reason to
believe" that Alaniz would acknowledge making the statement. The trial court ruled
that the State would be permitted to call Alaniz as a witness based upon the
prosecutor's representations. Accordingly, Appellant seemingly made the correct
objection pursuant to Hughes, and the trial court made an appropriate determination
under Rule 403 that the State did not intend to call Alaniz for an improper purpose.
At the conclusion of the Rule 403 determination, the trial court granted the
prosecutor's request for a briefrecess. After the recess and priorto the beginning of
witness testimony, Appellant's trial counsel raised the matter of the voluntariness of
Alaniz's statement. In response, the trial court advised the parties that it would
conduct a hearing on the voluntariness of Alaniz's statement prior to his trial
testimony.
After the State offered the brief testimony of another witness, the trial court
recessed the jury and conducted a hearing concerning the voluntariness of Alaniz's
statement. The hearing on the voluntariness of Alaniz's statement began with the
prosecutor asking Alaniz about thedetails of him giving thestatement. Those details
included that the statement was taken two days after Alaniz's seventeenth birthday
while he was incarcerated at a youth center. Alaniz testified that he did not
remember giving a statement to a police officer. However, he recalled a police
officer coming to pick him up atthe youth center. Alaniz also recalled that the police
officer showed him pictures of an autopsy and that the officer accused Appellant of
"being a murderer." Alaniz did not deny giving the police a statement. He
additionally identified the signature appearing on the statement as his own signature.
However, Alaniz testified that he could not recall what he said to the police.
After Alaniz testified at the voluntariness hearing, Appellant's trial counsel
re-urged his prior complaint that the State intended to call Alaniz for the sole purpose
of impeaching him with his statement and thereby use it as substantive evidence. At
the conclusion of the hearing, the trial court stated as follows:
All right. We began this hearing with ~ the purpose was to
determine the voluntariness of the statement. I have heard no evidence
that it was not voluntary. So, therefore, I find that it was a voluntary
statement.
Now, to talk about the impeachment, I mean, you may call the
witness but I am of the opinion you may not put him on and impeach
him knowing that he is not going to recognize the statement. I mean,
what else? What other purpose could you have?
The prosecutor responded to the trial court's inquiry by stating that Alaniz's
testimony "aboutthe gun andaboutthe photographs" should be presented to thejury.
The prosecutor additionally asserted that the statement was not hearsay because it
was a "notarized statement."2 The hearing concluded with the trial court ruling that
the State would be permitted to call Alaniz as a witness but that it would only be
permitted to impeach him with the statement rather than the statement itselfbeing
admitted. The trial court additionally granted the defense's request for a running
objection as to hearsay and its contention under Rule 403 regarding the State's use
of the witness statement.
In his testimony to the jury, Alaniz testified that an officer contacted him in
1992 while he was living in a youth center. The officer questioned him about a
2We disagree with the prosecutor's assertion that the statement was not hearsay because it was
notarized. See Contreras v. State, 766 S.W.2d 891, 892 (Tex. App.—San Antonio 1989, no pet.) (A
notary's oath does not take a prior inconsistent statement out ofthe realm ofhearsay. Under TEX. R. Evid.
801(e)(1)(A), "statements are non-hearsay only ifthey were made under oath 'at a trial, hearing, or other
proceeding except a grand jury proceeding, or in a deposition.'").
crime. Alaniz remembered the officer showing him autopsy photos. He also
testified that the signature on the witness statement was his signature. However, he
did not recall giving a statement to the police. Alaniz stated that "[i]t has been so
far back, I don't recall." Alaniz also testified that he remembered the police officer
accusing Appellant of committing the robbery that occurred at the Party House
Lounge. However, Alaniz did not remember anything else contained in the
statement. The prosecutor explored Alaniz's recollection of making the statement
by essentially goingthroughthe statement sentence by sentence and asking him, "Do
you remember telling the officer that . . . ?" At the conclusion of these questions,
the trial court allowed the State to offer Alaniz's written statement into evidence.
Alaniz's written statement provided as follows:
[l]3 My name is James Sonny Alaniz. I go by Sonny. I am 17 years
old, and I have lived in Odessa all my life. I am currently a sophomore
in High School, and I am attending classes at the Ector County Youth
Center until 01-16-92. I will then return to Permian High School where
I am permanently enrolled. I do read, write, and understand the English
Language.
[2] Today, Detective Corporal H. Q. Thomas came to the Ector County
Youth Center to see me. He asked if I would come to the Police
Department and talk to him about a case he was working. I told him
that I would. He drove me to the Police Department.
[3] At the Police Department, Detective Thomas showed me three
photos. I knew the persons in all three photos. One of them is my
uncle, Leroy Alaniz, one of them is a guy I know as Paul something;
Paul's last name starts with an "E". The third photo was of a female.
Her name is Gloria. Her last name also starts with an "E". Gloria is
Paul's sister. Gloria is also common-law married to my uncle, Leroy
Alaniz.
[4] Detective Thomas told me about a Robbery that occurred at the
Party House Lounge on West County Road. He told me that two
3We have numbered the paragraphs of Alaniz's written statement for later reference.
6
[H]ispanic males entered the lounge on 10-08-91 at about 9:20 p.m. and
robbed it. He told me that when they did the robbery, one of the
[H]ispanic males had a sawed-off gun believed to be a .22 cal[.] and the
other guy had a baseball bat. He also told me that the guy with the
baseball bat hit one of the men in the lounge several times in the head,
and he later died. He told me that he had gotten information that I was
involved in this robbery. He told me that he believed that my uncle,
Leroy Alaniz, and the guy I know as Paul are the ones who actually did
the robbery. He also told me that he believed that Leroy was the one
with the gun and Paul was the one with the baseball bat.
[5] I do not know anything about the robbery at the Party House
Lounge. I do know that my uncle, Leroy, does have a gun. The reason
I knowthat Leroyhas a gun is because on about 11-09-91 a week before
I was picked up on the auto theft and robbery with Paul, Leroy and I
went to do a Robbery at the Diamond Shamrock Station on South Crane
Street. I was driving a dark blue Chevrolet pick-up that I had stolen
about a week before. I have already told Detective Larry Torres about
the stolen pick-up, but I did not tell him about the robbery at the
Diamond Shamrock. It was about 11:00 p.m. I parked the pick-up
down the street, and Leroy got out and walked up to the station. Leroy
had a gun. All I could see was that Leroy walked down to the side of
the station. I could see him leaning against the building watching. The
lady who worked there was outside washing down the front lot with a
water hose. Leroy went on around the corner out of my sight. He was
outof my sight for a couple minutes. Several cars passing bythe station
honked, while Leroy was up there. Leroy came jogging across the
street by a house and down an open lot. Then he turned down the alley.
I drove to where he was headed and picked him up. Leroy told me that
the gun back-fired. Leroy told me that hethrew the gun down bya trash
can. I asked him if he got any money, and he told me that he didn't that
he didn't do it. I then drove the pick-up to my Grandmother's House
at 1450 S. Sam Houston.
WITNESS STATEMENT IS CONTINUED ON EXHIBIT "A"
ATTACHED HERETO AND BY THIS REFERENCE
INCORPORATED HEREIN FOR ALL PURPOSES.
EXHIBIT "A"
[Redacted Portion]4
[6] Detective Thomas asked me to describe the gun that Leroy had and
if I knew where the gun was now. The gun that Leroy had is a .22 cal[.]
saw-off [sic] rifle. The wooden part on the back of the rifle is broken
off. The wood part next [sic] the barrel of the rifle is taped on with two
separate wraps of black tape. Leroy showed me how to load the rifle
one time. The bullets push down inside the rifle on top of each other.
Leroy commented to me one time that the rifle was a 9 shooter.
[7] As far as where the rifle is, Leroy told me, about a week after the
Diamond Shamrock Station, he had gone back and gotten the rifle. I
do not know where the rifle is now. I got out of the Youth Center on
01-07-92. When I got home to my grandmother's house, I asked where
Leroy was. They told me that he had gone to El Paso, Texas. Leroy
may have taken the rifle with him. I just don't know. I did hear
yesterday that Leroy may be back to Odessa today.
[8] Detective Thomas asked me if Leroy or Paul ever told me anything
about the Party House Robbery. I would like to say that neither ofthem
ever told me anything about it. The first I heard of this robbery was
today, when Detective Thomas told me about it.
[9] All of what I have said is true and correct to the best of my memory.
[10] I have read the 2 page(s) of this statement, and the facts contained
herein are true and correct. This statement was started at 9:55 AM and
was finished at 11:21AM, on this date, by Detective Corporal H. Q.
Thomas.
As we noted previously, the analysis required by Hughes under Rule 403 is
required when a party seeks to introduce inadmissible hearsay under the guise of
impeachment. Hughes, 4 S.W.3d at 4. Alaniz's written statement was admitted into
evidence in this case on an impeachment theory, and the parties have briefed this
4The record indicates that a portion of Alaniz's written statement was redacted because it was not
discussed with him during his testimony.
8
case on whether or not the statement was proper impeachment evidence. However,
an appellate court must uphold the trial court's decision if it was correct under any
theory of law applicable to the case, even if the trial court did not purport to rely on
that theory or the prevailing party did not present that theory to the trial court. See
State v. Esparza, 413 S.W.3d 81, 85 (Tex. Crim. App. 2013); Vennus v. State, 282
S.W.3d 70, 74 (Tex. Crim. App. 2009); Jones v. State, 982 S.W.2d 386, 389 (Tex.
Crim. App. 1998); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).
Alaniz's statement contained two critical pieces of information: (1) that
Appellant possessed a .22 caliber sawed-off rifle within approximately one month
after the commission of the charged offense and (2) that Alaniz participated in
another robbery with Appellant at a Diamond Shamrock station using this rifle.5
This information is set out in the fifth, sixth, and seventh paragraphs of Alaniz's
statement. We conclude that these three paragraphs were admissible under an
exception to the hearsay rule for statements against interest. See Tex. R.
Evid. 803(24).6
Hearsay is a statement, other than one made by the declarant while testifying
at trial, that is offered to prove thetruth of the matter asserted. Tex. R. Evid. 801(d);
see Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). As a general rule,
hearsay evidence is inadmissible unless it falls within one of the many exceptions.
See Tex. R. Evid. 802; Willover, 70 S.W.3d at 845. The fifth, sixth, and seventh
paragraphs detail Alaniz's account of committing a robbery with Appellant and
Appellant's use of a sawed-off .22 caliber rifle to do so. Rule 803(24) provides an
5On appeal, Appellant does not challenge the admission ofevidence ofthe other robbery under
TEX. R. EVID. 404(b).
Presiding Judge Keller recognized in her dissenting opinion in Hughes that the "improper
impeachment" analysis under Rule 403 would not be required if the statements did not constitute
inadmissible hearsay. Hughes, 4 S.W.3d at 7 (Keller, J., dissenting).
exception to the hearsay rule for the admission of statements made against the
declarant's interest. This exception permits the admission of:
A statement that:
(A) a reasonable person in the declarant's position would have made
only if the person believed it to be true because, when made, it was
so contrary to the declarant's proprietary or pecuniary interest or
had so great a tendency to invalidate the declarant's claim against
someone else or to expose the declarant to civil or criminal liability
or to make the declarant an object of hatred, ridicule, or disgrace;
and
(B) is supported by corroborating circumstances that clearly indicate
its trustworthiness, if it is offered in a criminal case as one that
tends to expose the declarant to criminal liability.
The rationale behind admitting these types of statements "stems from the
commonsense notion that people ordinarily do not say things that are damaging to
themselves unless they believe they are true." Walter v. State, 267 S.W.3d 883, 890
(Tex. Crim. App. 2008). "[A] reasonable person would not normally claim that he
committed a crime, unless it were true." Id. Rule 803(24) sets out a two-step
foundation requirement for admissibility of hearsay statements. Id. The trial court
must first determine whether the statement, considering all of the circumstances,
subjects the declarant to criminal liability and whether the declarant realized this
when he made the statement. Id. at 890-91. The trial court must then determine
whether sufficient corroborating circumstances exist that clearly indicate the
trustworthiness of the statement. Id. at 891.
We conclude that the trial court would not have abused its discretion had it
determined thatthis portion of Alaniz's statement was a statement against his interest
under Rule 803(24). The fifth paragraph expressly states, "[Appellant] and I went
to do a Robbery at the Diamond Shamrock Station on South Crane Street." Alaniz
then detailed both his conduct and the conduct of Appellant during the robbery.
10
Alaniz stated that he drove Appellant to the station, waited on him, and then drove
him away from the station. This account would have subjected Alaniz to criminal
liability, and Alaniz, in all likelihood, would have realized this fact given that he was
making the statement to a police officer while in custody for another offense. There
are also significant factors suggesting that the statement was trustworthy given the
proximity in time to the event described in the statement, the nature of the account,
Alaniz's testimony that it bore his signature, and the fact that the statement was
notarized. Furthermore, the notarization of Alaniz's written statement made it self-
authenticated. See Tex. R. Evid. 902(8).
Having determined that the critical portions of Alaniz's written statement did
not constitute inadmissible hearsay, we need not consider whether these portions
constituted improper impeachment evidence. These portions of the statement were
admissible in their own right as substantive evidence.
The remaining portions of Alaniz's statement were inconsequential. The first
paragraph only contained biographical information about Alaniz. The second
paragraph detailed that Alaniz agreed to accompany the police officer to visit about
the case. The third paragraph detailed Alaniz's identification of three people in
photographs presented to him by the police officer for identification. The fourth
paragraph consisted of the police officer's description of the robbery that occurred
at theParty House Lounge. As such, it was cumulative of the other evidence offered
in the case. The eighth paragraph consisted of a denial of any knowledge by Alaniz
about the robbery at the Party House Lounge. In summary, the admission of the
other portions of Alaniz's statement did not result in reversible error. In this regard,
the violation of an evidentiary rule that results in the erroneous admission of
evidence constitutes nonconstitutional error. Geuder v. State, 142 S.W.3d 372, 376
(Tex. App.—Houston [14th Dist.] 2004, pet. ref d). As nonconstitutional error, we
must review the erroneous admission under Rule 44.2(b) of the Texas Rules of
ii
Appellate Procedure. Tex. R. App. P. 44.2(b); see Campos v. State, 317 S.W.3d 768,
779 (Tex. App.—Houston [1st Dist.] 2010, pet. ref d) (the erroneous admission of a
hearsay statement constitutes nonconstitutional error). When an appellate court
applies Rule 44.2(b), it must disregard nonconstitutional error unless it affects the
appellant's substantial rights. Barshaw v. State, 342 S.W.3d 91,93 (Tex. Crim. App.
2011). An appellate court should not overturn a criminal conviction for
nonconstitutional error "if the appellate court, after examining the record as a whole,
has fair assurance that the error did not influence the jury, or influenced the jury only
slightly." Id. (emphasis omitted) (quoting Schutz v. State, 63 S.W.3d 442, 444 (Tex.
Crim. App. 2001)) (internal quotation mark omitted). We have fair assurance that
the other portions of Alaniz's written statement did not influence the jury. We
overrule Appellant's sole issue on appeal.
This Court's Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
JUSTICE
July 9, 2015
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
12