Affirmed and Memorandum Opinion filed July 12, 2005.
In The
Fourteenth Court of Appeals
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NO. 14-03-01389-CR
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LADON ARELEANDO WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 965,214
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M E M O R A N D U M O P I N I O N
Ladon Williams appeals a conviction for murder[1] on the grounds that: (1) the trial court erred by admitting into evidence hearsay testimony and videotapes, and allowing appellant to be questioned about his post-arrest silence; and (2) the evidence was factually and legally insufficient. We affirm.
Statement Against Interest
Appellant=s first issue challenges the trial court=s admission of hearsay testimony from Therail Williams (ATherail@), relating statements made by Elijah Joubert that he and appellant had shot the complainant. Appellant argues that this testimony did not satisfy the Astatement against interest@ exception to the hearsay rule because it was not corroborated by evidence indicating that it was clearly trustworthy.
A trial court=s ruling on the admissibility of evidence is reviewed for abuse of discretion and will be upheld if it is reasonably supported by the record and correct under any theory of law applicable to the case, based on what was before the trial court at the time the ruling was made. Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). Among the types of evidence that are not excluded by the hearsay prohibition is a statement against a declarant=s interest; but 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). When such a statement is offered by the State to inculpate a defendant, the factors that are relevant to determine whether corroborating circumstances exist include: (1) the timing of the declaration; (2) the spontaneity of the declaration; (3) the relationship between the declarant and the party to whom the statement was made; and (4) the existence of independent corroborative facts. Woods v. State, 152 S.W.3d 105, 113 (Tex. Crim. App. 2004), cert. denied, __ U.S. __, 125 S. Ct. 2295 (2005).
In this case, the statements were made by Joubert within two weeks after the shooting and were either volunteered or made in response to questions by Therail, who was a good friend of Joubert. Independent corroborative evidence included: (1) the autopsy evidence supporting Joubert=s testimony that he shot the complainant while standing directly over him, whereas appellant had shot from much farther away; (2) other testimony corroborating Joubert=s description of the vehicle in which he and appellant left the scene; (3) a witness identification of Joubert as one of the shooters; and (4) appellant=s own statements to Therail that he had killed the complainant. In light of this evidence, it was within the trial court=s discretion to conclude that the corroborating circumstances requirement of rule 803(24) was satisfied. Accordingly, appellant=s first point of error is overruled.
Videotapes
Appellant=s second point of error challenges the admission of two videotapes (the Atapes@) of a conversation between Therail, appellant, and Joubert on the grounds that the tapes: (1) were not properly authenticated; (2) contained inadmissible hearsay; and (3) violated appellant=s constitutional right of confrontation. Because we have found no portion of the record at which appellant objected to the tapes based on a lack of authentication, that complaint presents nothing for our review,[2] and we will address only the second and third grounds.
The trial court initially refused to admit the tapes, allowing only Therail=s trial testimony concerning their subject matter. However, after defense counsel=s cross-examination of Therail implied that the conversations had never taken place, the trial court admitted the tapes to show that the conversations had occurred. Because the tapes were thus not offered to prove the truth of any matters asserted on them, they were not hearsay.[3] In addition, where a party has Aopened the door@ to evidence that would otherwise be inadmissible, such as under the hearsay or confrontation rules, those grounds of objection are effectively waived.[4] Moreover, appellant provides no legal standard, apart from the ordinary hearsay rules, for assessing the admissibility of the tapes under the Confrontation Clause, and the United States Supreme Court and Texas Court of Criminal Appeals have suggested that specific confrontation clause requirements apply only with regard to testimonial hearsay,[5] none of which is contained on the tapes. Because appellant=s second point of error thus fails to demonstrate error in the admission of the tapes, it is overruled.
Post-Arrest Silence
Appellant=s third point of error contends that the following exchange during his cross-examination by the State was a use of his post-arrest silence that violated his rights under the 5th Amendment of the United States Constitution and Article I, Section 10 of the Texas Constitution:[6]
Q. Did you ever give a statement in this case to Sergeant Douglas about . . . anything or your whereabouts on November 1st, 2002?
A. He never asked for one.
Q. [A]re you telling us that Sergeant Douglas, who was investigating this murder, came and talked to you . . . about the murder and he never asked you about this murder?
[Defense counsel] Your Honor, I object. This is a violation of the defendant=s right to remain silent, Your Honor.
* * * *
THE COURT: I=m going to overrule that objection based on your client=s answer.
A. Yes. He asked me about a murder. He never asked me for a statement. . . . And I answered his questions.
After a suspect has been given Miranda[7] warnings, assuring him that his silence will not be used against him, it is fundamentally unfair and a violation of due process to then use that silence against him, such as by impeaching an exculpatory explanation he gives at trial with the fact that he failed to give it to police after his arrest. Brecht v. Abrahamson, 507 U.S. 619, 628 (1993). Conversely, impeachment using post-arrest inconsistent statements is not prohibited because it makes use of a defendant=s statements (for which he has received no such assurances), not his silence. Anderson v. Charles, 447 U.S. 404, 408 (1980).
In this case, the question to which appellant objected[8] simply asked whether he had been asked about the murder, and did not refer in any way to any silence. Moreover, his eventual answer demonstrated that he had not, in fact, been silent, but had instead answered the questions posed. Because appellant=s third point of error fails to demonstrate that any post-arrest silence was ever used against him, it is overruled.
Sufficiency of the Evidence
Appellant=s fourth point of error challenges the legal and factual sufficiency of the evidence, contending that the testimony of the two key State witnesses, Therail Williams and Johnny Faniel, is contradictory and lacks credibility.
In reviewing the legal sufficiency of the evidence, we look at all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. at 510.
In this case, although there are discrepancies in the particulars of the testimony of the State=s witnesses, that evidence is not inconsistent as to appellant=s active participation in the offense. Moreover, although there is defense evidence rebutting the evidence of guilt, such as testimony of an alibi, it is only such as to have raised an issue of credibility for the jury, not to greatly outweigh the evidence of guilt. Because appellant=s fourth point of error thus fails to demonstrate that the evidence is legally or factually insufficient, it is overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Memorandum Opinion filed July 12, 2005.
Panel consists of Justices Yates, Edelman, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The jury found appellant guilty of murder and assessed punishment of life imprisonment.
[2] See Tex. R. App. P. 33.1(a).
[3] See Tex. R. Evid. 801(d).
[4] See Tex. R. Evid. 107; Lucas v. State, 791 S.W.2d 35, 53-54 (Tex. Crim. App. 1989) (applying predecessor statute to rule 107); Credille v. State, 925 S.W.2d 112, 117 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d).
[5] See Crawford v. Washington, 541 U.S. 36, 38 (2004); Woods, 152 S.W.3d at 113-14.
[6] See U.S. Const. Amend. V; Tex. Const. art. I, ' 10. Because appellant does not contend that the Texas Constitution affords any greater protection to post-arrest silence than the United States Constitution, we do not address his state and federal claims separately. See Mitschke v. State, 129 S.W.3d 130, 132 (2004).
[7] See Miranda v. Arizona, 384 U.S. 436, 473 (1966).
[8] We do not address the preceding question because appellant made no objection to it.