in the Matter of W.S.

99-00282 In the Matter of WS.wpd No. 04-99-00282-CV IN THE MATTER OF W.S. From the 73^rd Judicial District Court, Bexar County, Texas Trial Court No. 98-JUV-02777 Honorable Andy Mireles, Judge Presiding⁽¹⁾

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: January 5, 2000

AFFIRMED

W.S. appeals the trial court's amended order of adjudication following a jury trial. In a sole point of error, W.S. complains that the court abused its discretion when it refused to allow S.S., W.S.'s older brother, to testify regarding the statement against interest of Adrian Quintana ("Adrian"). We affirm.

Background

In an original petition, the State alleged that W.S. "knowingly and recklessly caused bodily injury to Sharon Landes-Rangel ("Rangel")" by kicking her while stealing her compact disc case, compact discs, and stereo. During trial, W.S. objected to the trial court's refusal to allow S.S. to provide testimony that would have shown Adrian, and not W.S., participated in the theft. A jury found that W.S. engaged in delinquent conduct. The trial court placed W.S. on probation for twenty-four months (nine of which were to be in a secure residential facility). W.S. appeals.

Discussion

1. The Evidence W.S. Sought to Admit and Its Context

a. The Context

Rangel testified that she noticed her car door was open. She walked toward the car and saw two sets of feet sticking out of the vehicle. The older individual, Augustine Quintana ("Augustine") exited the vehicle quickly. The younger boy, alleged to be W.S., did not exit the vehicle. Rangel grabbed the younger boy by his ears and physically forced him out of the car. A struggle ensued. The younger boy eventually freed himself and ran away with Augustine. Rangel, along with two neighbors, Mark Skinner ("Skinner") and Miguel Martinez ("Martinez"), chased him. Augustine scaled a fence and disappeared into his yard. Neither Augustine nor the younger boy were apprehended that evening.

Rangel later identified two students from a yearbook who resembled the younger boy: W.S. and S.S. Six days later, Augustine and the younger boy rode by Rangel on their bikes. One of them said, "Hey, look, man. There's that bitch we jumped the other night." In court, she identified the younger boy from the attack as being W.S.

b. The Evidence Offered by W.S. and Excluded by the Trial Court

W.S. attempted to offer testimony by S.S., his brother, regarding a statement made by Adrian. This statement implicated Adrian in the crime. By implication, the statement exonerated W.S. The trial court ruled that such testimony would amount to double hearsay and excluded the testimony. W.S. made an offer of proof:

COUNSEL: [S.S.], did Adrian tell you how he got the injury to his face?

S.S.: Yes sir.... He had said that he had broke into a car and that when the lady had came out and he had-she had grabbed him and he had fell [sic], because he said that he was drunk. And then that's when he got up and I guess he started cussing at her. That's when his brother-'cause they had took a brown rag off of him, and the brother went back over there and got the brown rag, and I guess that's how the lady found out who Augustine was [sic].

COUNSEL: Now, how exactly did he get hurt on his face?

S.S.: Yeah, he had fell. When the lady that pulled him, he fell on the floor [sic].

The court ruled that the statement amounted to double hearsay and that Rule 803(24), an exception to the hearsay rule for statements against interest, did not render the statement admissible.

c. The Trial Court Did Not Abuse Its Discretion in Excluding the Evidence

Because W.S. asks us to determine whether the trial court's ruling is correct in light of Rule 803(24), we will determine whether Adrian's statement, offered through S.S., is reliable enough as a statement against interest to be exempt from the reach of the hearsay rule.

(1) Standard of Review

The Texas Court of Criminal Appeals has stated that "[a] trial court has broad discretion in determining the admissibility of the evidence, and an appellate court will not reverse unless a clear abuse of discretion is shown." See Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (proscribing appellate court intervention as long as the trial court's ruling "was at least within the zone of reasonable disagreement"). We will sustain the trial court's ruling, even if the wrong reason is given for the decision, if it is otherwise correct on any theory of law that is applicable to the case. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990) (stating that this principle "is especially true with regard to admission of evidence").

(2) Method of Review

The Court of Criminal Appeals requires a two-step inquiry to determine whether a statement is admissible under Rule 803(24). We look first to "determine whether the statement in question tends to expose the declarant to criminal liability." See Bingham v. State, 987 S.W.2d 54, 57 (Tex. Crim. App. 1999) (citations omitted). We then consider "if there are corroborating circumstances that clearly indicate the trustworthiness of the statement." See id.; see also Tex. R. Evid. 803(24). Rule 803(24) states that the following is not excluded by the hearsay rule:

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) (emphasis added). The Texas Rules of Evidence that apply to criminal cases apply to judicial proceedings under the Juvenile Justice Code. See Tex. Fam. Code § 51.17(c) (Vernon Supp. 2000).

(3) Admissibility of S.S.'s Testimony

Adrian's statement, reported by S.S., tends to expose Adrian to liability under the Juvenile Justice Code. Although the first inquiry is in W.S.'s favor, we must make a second inquiry: Whether corroborating circumstances exist that clearly indicate the trustworthiness of the statement. The following non-exclusive list of factors aids us in pursuing this inquiry: Whether the declarant's guilt is inconsistent with that of the accused; "whether the declarant was so situated that he might have committed the crime; the timing of the declaration and its spontaneity; the relationship between the declarant and the party to whom the declaration was made; and the existence of independent, corroborative facts." Bingham, 987 S.W.2d at 58. Evidence that serves to "undermine the reliability of the statement as well as evidence corroborating its trustworthiness may be considered," so long as we do not weigh the credibility of the witnesses. Id.

We now examine the factors in the present case that help determine whether corroborating circumstances exist that clearly indicate the trustworthiness of Adrian's statement. Adrian's guilt would not be inconsistent with that of W.S. As Augustine's brother, the declarant could have committed the crime. The purported statement is alleged to have occurred shortly after the altercation with Rangel. The record does not indicate the nature of Adrian and S.S.'s relationship. Adrian reportedly had a facial injury after the attack; W.S., at least according to his mother, did not. According to W.S.'s mother and W.S.'s Juvenile Probation Officer, neither S.S. nor W.S. possessed the articles of clothing that the younger boy wore during the attack. S.S. contradicted this testimony, indicating that he owned the brand of shirt worn by the younger boy who attacked Rangel. S.S. also testified vaguely that both he and W.S. were together at a party during the attack. These circumstances do not clearly indicate the trustworthiness of Adrian's statement.

Evidence exists that undermines the trustworthiness of Adrian's statement. Rangel testified that she saw only the older boy (Augustine) scale the fence into what was later determined to be his yard. She did not see the younger boy go in the same direction as Augustine. In addition, testimony of Martinez and Skinner undermines the statement's trustworthiness. Martinez testified that he recognized the younger boy in the courtroom as being W.S. based on his features, face, hair, and height. In examining photographs from the yearbook, he testified that the younger boy involved in the incident with Rangel was not Adrian. Skinner testified that he had identified W.S. from the high school yearbook. He also identified W.S. in the courtroom. In examining the photographs of the yearbook, he testified that the younger boy involved in the incident with Rangel was not Adrian. In summary, three witnesses (Rangel, Martinez, and Skinner) testified that W.S. was the younger boy who attacked Rangel. Three witnesses (S.S., W.S.'s Juvenile Probation Officer, and W.S.'s mother) provided evidence that supports the statement sought to be recollected by S.S. The evidence, in light of the factors articulated by the Bingham court, does not "clearly indicate the trustworthiness of the statement" purportedly made by Adrian. See Cunningham v. State, 877 S.W.2d 310, 314 (Tex. Crim. App. 1994) (affirming the court of appeals' judgment in a situation where "the circumstances indicating trustworthiness were at least equally met by circumstances indicating lack of trustworthiness"). The trial court did not err in excluding S.S.'s testimony regarding Adrian's alleged statement against interest.

2. Even if the Trial Court Erred, W.S. Did Not Suffer Harm

Even if Adrian's statement were admissible, its exclusion did not harm W.S. The jury had already heard from S.S. that Adrian had an injury on his face. The jury had also heard from W.S.'s Juvenile Probation Officer, as well as W.S.'s mother, that W.S. did not have an injury on his face. W.S.'s mother testified that W.S. did not own the articles of clothing worn by the younger boy; W.S.'s Juvenile Probation Officer testified that he had never seen him wear such clothing. During closing argument, W.S. presented the possibility of Adrian's role in the attack to the jury. Even if S.S.'s testimony should have been admitted, W.S. did not suffer harm by its exclusion. The jury, having been exposed to all of the evidence that S.S. would have offered in the form of Adrian's purported statement against interest, concluded that W.S. engaged in delinquent conduct. If there is any error in the trial court's decision, it is harmless. See Tex. R. App. P. 44.2(b).

Conclusion

We affirm the trial court's order of adjudication.

Phil Hardberger, Chief Justice

DO NOT PUBLISH

1. The Honorable Frank Montalvo presided at trial. The Honorable Andy Mireles signed the amended order of adjudication.