IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1221-03
JAMES MITCHELL, JR., Appellant
v.
THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
KINNEY COUNTY
Holcomb, J., delivered the opinion of the Court, in which Meyers, Price, Womack, Johnson, and Cochran, JJ., joined. Keasler, J., filed a dissenting opinion, in which Hervey, J., joined. Keller, P.J., dissented. Cochran, J., filed a concurring opinion.
O P I N I O N
Appellant James Mitchell, Jr., was convicted of taking wildlife resources without the consent of the landowner. See Tex. Parks & Wild. Code Ann. § 61.022 (Vernon 2002). The trial court assessed appellant's punishment at 180 days confinement in a state-jail facility and a fine of $1500. In an unpublished memorandum opinion, the Fourth Court of Appeals affirmed the judgment of the trial court. Mitchell v. State, 04-02-00084-CR, slip op. at 12, 2003 Tex. App. Lexis 5269 *19 (Tex. App.--San Antonio 2003, pet. granted). We granted review to determine whether the court of appeals erred in holding that several out-of-court statements were admissible under Texas Rules of Evidence 801(e)(2)(E) and 803(24). Tex. R. App. P. 66.1. We reverse.
The Relevant Historical and Procedural Facts
On December 21, 1999, U.S. Border Patrol agents took into custody, and questioned, two teenage boys on suspicion of poaching. Through custodial interrogation, the boys admitted shooting three deer on private property and implicated appellant as a party to the offense. (1) See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). Their out-of-court statements, admitted at trial over objection, allowed the jury to consider the following additional facts: that appellant had dropped off the boys to hunt on private property (the Harris Ranch), that appellant had returned and retrieved the boys' hunting rifle, and that appellant intended to return to pick up the boys and the deer. Also, out-of-court statements made by appellant's father were received into evidence over a hearsay objection and a Confrontation Clause objection. These statements tended to show that, during the time the boys were hunting on the Harris Ranch, appellant was with the boys either having lunch or hunting. The boys' out-of-court statements were admitted at appellant's trial through the testimony of the Border Patrol agents and a game warden.
Appellant argued to the trial court that the boys' out-of-court statements were hearsay; the State responded that the statements were admissible under the co-conspirator exception to the hearsay rule and convinced the trial court that evidence of the conspiracy would be shown through subsequently offered testimony. See Tex. R. Evid. 801(e)(2)(E). The trial court overruled appellant's objection but granted his request for a running hearsay objection. See e.g., Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (a party may preserve error by running objection); Garza v. State, 996 S.W.2d 276, 279 (Tex. App.-Dallas 1999, pet. ref'd) (proponent must offer evidence of the existence of a conspiracy).
After the State rested, appellant argued that the boys' out-of-court statements should be struck because the State never offered any evidence that those statements were made in the course of a conspiracy. (2) The trial court overruled the motion to strike. At the conference on the jury charge, appellant moved the court to instruct the jury to disregard all of the out-of-court statements because they were hearsay and violated appellant's right to be confronted with the witnesses against him under both the state and federal constitutions. The trial court overruled appellant's request for the instruction.
The Court of Appeals' Decision
Instead of addressing appellant's complaint that the statements should have been struck because no evidence of a conspiracy was shown, the court of appeals affirmed the trial court on a different theory offered by the State on appeal--i.e., that the boys' out-of-court statements were hearsay-excepted under Texas Rule of Evidence 803(24) (statements against penal interest). (3) The court of appeals reasoned that the boys' statements were admissible because they were "self-inculpatory," i.e., "they expose[d] the boys to liability for shooting their deer on the Harris Ranch without Harris' permission [and] although the statements appear to be the product of custodial interrogation by law enforcement officials, the statements nevertheless bore the necessary indicia of trustworthiness." Mitchell v. State, slip op. at 12. We disagree; the statements were not hearsay-excepted because they did not meet the reliability requirements of Rule 803(24). Analysis
Texas Rule Evidence of 803(24) defines a statement against interest as:
A statement which was at the time of its making so far . . . tended to subject the declarant to . . . criminal liability . . . 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.
To be admissible under this rule, the out-of-court statement must be self-inculpatory with corroborating circumstances indicating the trustworthiness of the statement. Dewberry v. State, 4 S.W.3d 735, 751 (Tex. Crim. App. 1999). The proponent of such a statement is required to show that it exposes the declarant to criminal liability and is trustworthy and reliable under corroborating circumstances. See Cofield v. State, 891 S.W.2d 952, 953 (Tex. Crim. App. 1994). Only those statements that are wholly self-inculpatory are trustworthy enough to be admissible under the rule. Id. at 956. We may look also to the existence of independent, corroborating facts that tend, either directly or circumstantially, to establish the truth of the matter asserted by the statement. See Dewberry, 4 S.W.3d at 751. We conclude that the boys' statements were not wholly self-inculpatory and the State did not offer corroborating circumstances to clearly show the trustworthiness of the boys' statements. See id.
As the court of appeals reasoned, the statements did expose the boys to criminal liability, but, as appellant points out, the statements also exposed appellant to criminal liability. See Cofield, 891 S.W.2d at 956. The United States Supreme Court has said, "The fact that a person is making a broadly self-inculpatory confession does not make more credible the confessions's non-self-inculpatory parts." Williamson v. United States, 512 U.S. 594, 599 (1994). The concern is that the declarant may be attempting to shift blame to another or curry favor with the State. See id. at 603; see also Lilly v. Virginia, 527 U.S. 116, 139 (1999) (nontestifying accomplice's confession, in which he incriminated himself as well as defendant, was not sufficiently reliable because accomplice may have been attempting to shift blame to defendant). We are not assured that the non-self-inculpatory parts of the boys' statements were not meant to curry favor with law enforcement, to spread or shift blame to appellant, or that the boys were not merely attempting to avenge themselves or divert attention away from their own culpability. See Cofield, 891 S.W.2d at 956.
Although there is no definitive test for determining the sufficiency of corroborating circumstances, some of the factors applicable to this case are (1) the timing of the statement and its spontaneity; (2) the relationship between the declarant and the party to whom the statement was made; and (3) the existence of independent corroborating facts which, either directly or circumstantially, tend to establish the truth of the matter asserted by the statement. See Davis v. State, 872 S.W.2d 743, 749 (Tex. Crim. App. 1994). Even though the court of appeals addressed the third factor and found the independent corroborating facts to be sufficient, (4) the court of appeals did not adequately consider the first two factors.
We believe it significant to the reliability requirement that the boys' out-of-court statements were the product of police interrogation and were made by juvenile suspects who had been apprehended at dusk in a remote area after evading law enforcement for half-an-hour and who had changed their story at least three times during the course of the interrogation. That is, because the statements were elicited by law enforcement while in custody, the boys may have been attempting to curry favor, spread the blame, or divert attention away from their own culpability. (5) See Cofield, 891 S.W.2d at 955; Davis v. State, 872 S.W.2d at 748 n.11; cf. Dewberry v. State, 4 S.W.3d 735, 753 (Tex. Crim. App. 1999) (out-of-court statements not elicited under police interrogation; rather, statements were freely and spontaneously spoken to a friend).
Moreover, when a statement is made spontaneously, it is thought to be much more trustworthy. Woods v. State, 152 S.W.3d 105, 113 (Tex. Crim. App. 2004). Here, the record shows that the statements were not made spontaneously; rather, the boys' story changed several times over the course of the interrogation. Therefore, we sustain appellant's complaint that the statements did not meet the trustworthiness requirement under the declaration-against-interest exception to the hearsay rule. (6) See id.; Cofield, 891 S.W.2d at 956; Tex. R. Evid. 803(24).
Having found error, we now consider whether it was harmful under Texas Rule of Appellate Procedure 44.2(b). Tex. R. App. P. 44.2(b) (non-constitutional errors that do not affect substantial rights must be disregarded). An appellate court may not reverse if, after examining the record as a whole, it has fair assurance that the error did not influence the jury or had but a slight effect. Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001).
It is a violation of the poaching statute to "hunt or catch by any means or method or possess a wildlife resource at any time and at any place . . . unless the owner of the land or water, or the owner's agent, consents." See Tex. Parks & Wild. Code Ann. § 61.022; Harrison v. State, 76 S.W.3d 537, 541 (Tex. App.--Corpus Christi 2002, no pet.) (construing statute to include element of culpable mental state). To sustain appellant's conviction as a party to the boys' poaching expedition, the record evidence must show that appellant acted with intent to promote or assist the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid the boys. (7) See Tex. Pen. Code Ann. § 7.02(a)(2). The record reflects that the boys' out-of-court statements were the heart of the State's case. Therefore, we do not have fair assurance that the admission of the evidence did not influence the jury or had but a slight effect. See Solomon v. State, 49 S.W.3d at 365.
Conclusion
Because the court of appeals erred in affirming the trial court's admission of the boys' statements under Rule 803(24) and because we are not fairly assured that the error did not influence the jury or had but a slight effect on its deliberations, we reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings.
DELIVERED: APRIL 6, 2005.
DO NOT PUBLISH
1. Appellant is one of the boys' father.
2. The record clearly supports appellant's contention. No evidence was offered to show that the statements were made during the course of a conspiracy or that they otherwise satisfied the basic requirements of Rule 801(3)(2)(E).
See Deeb v. State, 815 S.W.2d 692, 697 (Tex. Crim. App. 1990); Garza v. State, 996 S.W.2d at 279 .3. Appellate counsel, at oral argument and in her brief before this Court, stated that she was not relying on
Crawford v. Washington, 541 U.S. 36(2004). We therefore address only whether the statements were hearsay-excepted under Texas Rule of Evidence 803(24).4. The court of appeals recited the following facts in support of its holding that there were independent corroborating facts indicating the trustworthiness of the boys's statements: no vehicles were found in the remote area where the boys were discovered, the boys had no weapons, appellant went to the Border Patrol checkpoint in search of the boys, and a rifle of the same caliber that was used to kill the deer was found in appellant's truck.
Mitchell, 04-02-00084-CR, slip op. at 12. However, we cannot agree that these facts, offered as independent corroborating facts, show that the statements were clearly trustworthy. See Davis v. State, 872 S.W.2d at 749.5. We find appellant's additional argument persuasive that the statements are unreliable due to the boys' age and the likelihood that the boys were afraid, thus making it more likely that they would attempt to spread or "shift primary blame to a more 'responsible' party."
6.
The dissent suggests that we have "misread" Cofield in holding that the admission of the boys' statements was error. Post, slip op. at ____. However, contrary to the dissent's position, we do not summarily conclude that the statements are "automatically inadmissible" only because they were not wholly self-inculpatory. Rather, we hold that the statements were inadmissible because (1) they were not wholly self-inculpatory and (2) the State did not meet its burden of establishing independent corroborating facts and (3) the corroborating circumstances did not clearly indicate the trustworthiness of the statements. See Cofield, 891 S.W.2d at 955 (citing Davis v. State, 872 S.W.2d at 749). The most important factor we rely on, which the court of appeals virtually ignored, is the fact that the statements were made to law enforcement during custodial interrogation. See Davis v. State, 872 S.W.2d at 749.In Davis, we stated that an appellate court may consider "the timing of the declaration and its spontaneity" and "the relationship between the declarant and the party to whom the declaration was made" as factors showing the existence of corroborating circumstances. Indeed, the key distinction between Woods, Dewberry, and Cofield is the manner in which the statements were made and to whom the statements were made. See Woods, 152 S.W.3d at 113 (finding corroborating circumstances reliable because statements were "street corner" statements made spontaneously to friends); Dewberry, 4 S.W.3d at 751-52 (fact that statements were made spontaneously to friends indicative of reliability under 803(24)); Cofield, 891 S.W.2d at 955 (noting in its analysis of the existence of corroborating circumstances that declarant made statement to arresting officer). Cf. Crawford v. Washington, 541 U.S. at 51 ("off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules").
7. The court's charge did not authorize the jury to find appellant guilty as a primary actor.