Opinion issued January 23, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00038-CR
———————————
TRAVIS WADE COLEMAN, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Case No. 66103
OPINION
A jury convicted appellant, Travis Wade Coleman, Jr., of the offense of
murder and assessed punishment at thirty-three years’ confinement. 1 In his sole
1
See TEX. PENAL CODE ANN. § 19.02(b)(1)–(2) (Vernon 2011).
issue on appeal, appellant contends that the trial court erroneously admitted
hearsay statements of his co-defendant through the testimony of three third-party
witnesses.
We affirm.
Background
On January 18, 2011, Brazoria County Sheriff’s Office Investigator D.
Collins was dispatched to investigate a deadly conduct report that appellant had
called in outside of his family’s residence in Alvin. Appellant lived at this address
with his mother, Amy Coleman, one of his younger brothers, Aaron Coleman, an
unrelated man, Jimmy Smith, and Amy’s husband and appellant’s stepfather, Ray
Sambrano, the complainant. Investigator Collins spoke with appellant, who
completed and signed a written statement. In this statement, appellant related that,
while he was taking his dogs outside, a “32-v North Star Cadillac” pulled up with
three men inside. The driver asked appellant if Sambrano was at home. After
appellant responded that Sambrano was not, the driver told appellant to tell
Sambrano that if the men see him, they’re “going to kill him.” The man sitting in
the back seat of the car pulled out a shotgun and fired it into the air before the men
drove off. Appellant gave a rough description of the men and the car, and he later
met with a sketch artist. Investigator Collins was never able to locate either the car
2
or the men who allegedly threatened Sambrano, and, when he asked appellant’s
neighbors about this incident, no one told him that they had heard a shotgun blast.
The next day, January 19, 2011, appellant called the Brazoria County
Sheriff’s Office around 4:15 p.m. and reported that a shooting had occurred at his
residence. When Investigator Collins arrived around 5:00 p.m., appellant, his
younger brother, Jared Coleman, and his grandmother, Maybelle Martinez, were
present at the residence. The responding officers led Investigator Collins to the
master bedroom, where he saw Sambrano lying across the bed with his feet
hanging off the left side of the bed. Sambrano had a shotgun wound to his face,
which was immediately apparent, as well as a shotgun wound to the left side of his
chest, which became apparent only when officers moved the surrounding blankets.
Investigator Collins testified that the officers on the scene did not mention the
second gunshot wound to anyone not investigating the murder. There were no
signs of a struggle in the bedroom, and no guns were present in the room. Officers
later determined that the gunshot wounds were caused by a 20-gauge shotgun.
Dr. Nobby Mambo, a medical examiner for Galveston County, testified that
he performed the autopsy on Sambrano. Dr. Mambo testified that the level of rigor
mortis and lividity present in the body indicated a time of death approximately
eight to ten hours before Investigator Collins viewed and documented the state of
the body at 5:00 p.m. on January 19, 2011.
3
Investigator Collins spoke with appellant immediately after the discovery of
Sambrano’s body. Appellant indicated that Sambrano was alive at some point
during the morning, because appellant spoke with him and asked to use his shower.
Appellant told Investigator Collins that he rode his bicycle to Martinez’s house,
where Jared was living, around 10:00 a.m. and remained there until 3:00 p.m.,
when he needed to leave for a 3:30 appointment. After this appointment,
appellant, Jared, and Martinez returned to appellant’s residence, where appellant
and Jared found Sambrano dead.
Appellant spoke with Investigator Collins again on January 20, 2011, after
first meeting with the sketch artist to complete sketches of the men involved in the
alleged deadly conduct incident. Investigator Collins asked appellant to recount
his activities on January 18, 2011, but appellant did not mention anything about the
deadly conduct incident. Investigator Collins found that omission to be strange,
but he still considered the individuals who had allegedly driven by the residence
and threatened Sambrano to be the main suspects in the murder, not appellant.
Investigator Collins interviewed appellant again a week later, and as a result of
several inconsistencies throughout appellant’s different statements, Collins
considered him to be a suspect. Appellant acknowledged in this interview that he
hated Sambrano. Investigator Collins did not arrest appellant at the time of the
second interview.
4
In September 2011, Jared Coleman went to live briefly with the family of his
friend Corey Kerchner. While there, he confessed to Kerchner’s mother, Alice
Yeargan, that he and appellant shot Sambrano. Yeargan took Jared to talk to the
police the next day.
Also in September 2011, Investigator Collins contacted Russell Coleman,
appellant’s uncle, who lived in the same neighborhood. Russell owned, among
other guns, a 20-gauge shotgun, which he surrendered to the police. Russell also
turned over another gun, a deer rifle, which he had unexpectedly found in a green
gun case that he usually used to store the shotgun. The trial court admitted both of
these guns and the gun case into evidence.
Russell Coleman testified and identified State’s Exhibit 15 as his shotgun.
He testified that he usually kept that shotgun in a green case in his closet and that
appellant knew where he stored that gun. Sometime in 2011, after Sambrano’s
murder, Russell tried to retrieve his shotgun from the case, but he instead
discovered a deer rifle in its place. Russell did not expect to see that rifle, and he
called his brother, appellant’s father, to ask if his sons had taken the shotgun.
Russell believed that appellant might have taken it because he had at one time
asked Russell if he could borrow it to go hunting, and Russell told him that he
could not borrow it. Several days after Russell called his brother, his brother
5
brought the shotgun back to him. Russell later gave the shotgun and the shotgun
case, with the rifle inside of it, to the police.
Appellant’s father, Travis Coleman Sr., testified that he had a conversation
with Russell about his missing shotgun. Approximately one month after the
murder, and after he had spoken to Russell, Travis drove appellant and appellant’s
older brother, Brandon, over to appellant’s residence. Appellant went to the
backyard for several minutes and then returned with “the shotgun in his boot, in his
pants.” Appellant got back in the car and said, “[H]ere is Uncle Russell’s gun.”
Travis identified State’s Exhibit 15 as the shotgun he saw down appellant’s pants
leg and as Russell’s shotgun.
Investigator Collins also testified that after appellant was indicted, appellant
had a conversation with his mother while he was in jail, and this conversation was
recorded. During this conversation, appellant told his mother that he would run to
Mexico, and he also said that “Jared needs to keep his mouth shut or he’ll be
putting us in prison.” Investigator Collins also viewed a recorded conversation
between appellant and his older brother’s girlfriend, in which appellant stated that
the only evidence the police had was Jared.
Dylan Woolridge, a friend of Jared’s and appellant’s, testified that he was
around appellant when he was served with a copy of the indictment in this case.
He testified that appellant was upset and crying and that he punched a wall or a
6
phone. Woolridge also testified that appellant told him that he did not want Jared
“to go down for something for it” and that appellant was the one who killed
Sambrano. Appellant told Woolridge that he took a shower and then shot
Sambrano while he was asleep. Appellant also told him that he shot Sambrano
with either a shotgun or a rifle and that appellant obtained the gun from “Russell or
something like that,” who was an uncle or “[s]omebody in [appellant’s] family.”
Woolridge also testified that appellant told him that when he took the shotgun from
his uncle, he switched the gun with a “243” rifle. Appellant told Woolridge that he
stole the shotgun from his uncle and that he hid the shotgun under Sambrano’s
house after the murder.
Dakota Graham testified that he was friends with both Jared and appellant
and that appellant had lived with him for awhile. Graham stated that, after the
murder, he heard appellant make comments on several different occasions that he
“was going to kill somebody like he did [Sambrano].” Graham testified that
appellant “seemed kind of serious” when he would make those comments and that
“there was no hesitation” when he would do so. He also testified that appellant
told him that appellant “made a mistake” in his interview with the police because
he forgot to mention the deadly conduct incident that had allegedly occurred the
day before the murder and “the cops would think he was lying.” Graham also
testified that he had owned a “243” deer rifle that went missing a few months after
7
appellant moved out. He identified State’s Exhibit 17, one of the guns recovered
from Russell Coleman, as that rifle.
Jennifer Fitts, the former girlfriend of appellant’s older brother, testified that
she saw appellant on the night of Sambrano’s murder and that his demeanor was
“normal.” She testified that appellant and his brothers hated Sambrano and that
she had heard appellant say, before the murder, that he wished Sambrano was dead
and that he would like to kill Sambrano.
The State also offered the testimony of three witnesses to whom Jared
Coleman had spoken about his and appellant’s involvement in Sambrano’s murder.
Defense counsel objected to the testimony of all three witnesses on hearsay
grounds, and the trial court admitted the testimony under the “statement against
interest” exception to the hearsay rule.
Leah Larivee testified that she started dating Jared in January 2011 and that,
in February 2011, she moved into the same house as Jared. A few weeks after she
moved in, she had a conversation with Jared about Sambrano’s murder, and, during
this conversation, “he just basically blurted out that he had killed his mom’s
boyfriend.” Jared made this admission “completely out of the blue.”
Approximately one week later, after Jared had smiled at Larivee while they
listened to a song called “Getting Away with Murder,” she decided to ask him if he
was serious or if he had been joking around with regard to his previous admission.
8
Jared replied that he was serious and “he proceeded to then tell [Larivee] how he
actually did it.” Jared told her that he and appellant formed a plan to kill
Sambrano. He told her that he “was dropped off really early about a mile away
from, I guess, [Sambrano’s] residence and that he walked the rest of the way
there.” He told her that he waited for appellant for about an hour, that he turned on
Sambrano’s shower, that Sambrano woke up and asked him what he was doing,
and that he and appellant both shot Sambrano—one in the side and one in the head.
He then said that they got rid of the guns, and he went back to his grandparents’
house where he was living at the time.
Corey Kerchner testified that he knew both Jared and appellant and that
Jared briefly lived with his family beginning in September 2011. He testified that
appellant had told him that he hated Sambrano. He also testified that, after Jared
moved in with his family, he had a conversation with Jared about Sambrano’s
murder. Jared told Kerchner that he and appellant planned Sambrano’s murder and
that “they were doing God’s work.” Kerchner interpreted that to mean “taking
people’s lives, or taking the person’s life like God would.” The following
exchange then occurred between the State and Kerchner:
[The State]: Did [Jared] ever tell you whether or not he
participated in [the murder]?
[Kerchner]: He told me that he was on the porch but—
[The State]: Okay. That’s good.
9
The State then immediately passed the witness.
Finally, the State called Alice Yeargan, Kerchner’s mother. She
characterized her relationship with Jared as “close” and “like one of [her] kids,”
and she testified that Jared had previously confided in her. She testified that she
had a conversation with Jared about Sambrano’s murder in September 2011. Jared
was upset and crying, and he told Yeargan that he and appellant shot Sambrano.
He also told her that if he or appellant ever got caught, they would “probably kill
themselves because they didn’t want to hurt their mom that way.” Yeargan took
Jared to talk to the police the next day.
On cross-examination, Yeargan agreed with defense counsel that, at the time
of her conversation with Jared, she knew that he was going to speak to the police
the next day. On re-direct examination, she clarified that she had no indication that
Jared was involved in Sambrano’s murder before he admitted as much to her and
that she had not been planning on taking him to the police before their
conversation.
The jury convicted appellant of the offense of murder and assessed
punishment at thirty-three years’ confinement. This appeal followed.
10
Admission of Hearsay Testimony
In his sole issue, appellant contends that the trial court erroneously admitted
hearsay statements of Jared Coleman through the testimony of Leah Larivee,
Corey Kerchner, and Alice Yeargan.
A. Standard of Review
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) (citing
Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001)). We will not reverse
the trial court’s ruling unless it falls outside the zone of reasonable disagreement.
Id. In applying the abuse of discretion standard, we may not reverse a trial court’s
admissibility decision solely because we disagree with it. Powell v. State, 63
S.W.3d 435, 438 (Tex. Crim. App. 2001). We will not disturb a trial court’s
evidentiary ruling if it is correct on any theory of law applicable to that ruling. De
La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
B. Admissibility of Inculpatory Statements by Co-Defendant
Generally, the hearsay rule excludes any out-of-court statements offered by a
party at trial to prove the truth of the matter asserted in the statement. See TEX. R.
EVID. 801(d) (defining hearsay); TEX. R. EVID. 802 (“Hearsay is not admissible
except as provided by statute or these rules or by other rules prescribed pursuant to
statutory authority.”); Walter v. State, 267 S.W.3d 883, 889 (Tex. Crim. App.
11
2008). One of the exceptions to the hearsay rule allows the admission of
statements made against the declarant’s interest. TEX. R. EVID. 803(24). This
exception permits admission of:
A statement which was at the time of its making . . . so far tended to
subject the declarant to civil or criminal liability . . . 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.
Id. 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, 267 S.W.3d at 890. “[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.; Mason v. State, — S.W.3d —, No. 14-12-00054-CR, 2013
WL 5861492, at *8 (Tex. App.—Houston [14th Dist.] Oct. 31, 2013, no pet. h.).
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. Walter, 267 S.W.3d 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. Both
12
statements that are directly against the declarant’s interest and collateral “blame-
sharing” statements that implicate both the declarant and the defendant may be
admissible under Rule 803(24) if corroborating circumstances clearly indicate their
trustworthiness.2 Id. at 896. “Blame-shifting” statements that implicate the
defendant but minimize the declarant’s culpability are not admissible under this
rule, absent extraordinary circumstances. Id.; see also Guidry v. State, 9 S.W.3d
133, 149 (Tex. Crim. App. 1999) (holding statements inadmissible under Rule
803(24) because statements were “not so equally against both [the declarant’s] and
[the defendant’s] interests as [to] reach this level of reliability”). The trial court is
therefore “obligated to parse a generally self-inculpatory narrative and weed out
those specific factual statements that are self-exculpatory or shift blame to
another.” Walter, 267 S.W.3d at 897.
The determination of whether corroborating circumstances clearly indicate
trustworthiness lies within the trial court’s sound discretion. Mason, 2013 WL
2
In Walter v. State, the Court of Criminal Appeals explicitly adopted this approach
favored by Justice Kennedy in his concurring opinion in Williamson v. United
States, 512 U.S. 594, 114 S. Ct. 2431 (1994), as opposed to the approach adopted
by the plurality opinion in Williamson, which would admit statements solely
against the declarant’s interest but not collateral “blame-sharing” statements. See
267 S.W.3d 883, 896–97 (Tex. Crim. App. 2008) (discussing why Justice
Kennedy’s approach “represents better evidentiary policy”). Appellant argues that
we ought to follow the Williamson plurality opinion, which construed the federal
counterpart to Rule 803(24), instead of the Court of Criminal Appeals’ decision in
Walter. Because the Court of Criminal Appeals in Walter construed and analyzed
the precise rule at issue in this case, and its analysis is binding upon us, we decline
to apply the approach set out in the Williamson plurality, and we instead decide
this case based upon Walter.
13
5861492, at *8 (citing Cunningham v. State, 877 S.W.2d 310, 313 (Tex. Crim.
App. 1994)). Several factors are relevant when analyzing the sufficiency of
corroborating circumstances: (1) whether the guilt of the declarant is inconsistent
with the guilt of the defendant; (2) whether the declarant was so situated that he
might have committed the crime; (3) the timing of the declaration; (4) the
spontaneity of the declaration; (5) the relationship between the declarant and the
party to whom the statement was made; and (6) the existence of independent
corroborative facts. Woods v. State, 152 S.W.3d 105, 113 (Tex. Crim. App. 2004);
Dewberry v. State, 4 S.W.3d 735, 751 (Tex. Crim. App. 1999); Mason, 2013 WL
5861492, at *8. The first two factors only apply when the defendant is the
proponent of a statement that tends to exculpate the defendant. Woods, 152
S.W.3d at 113. The first two factors are not relevant when, as here, the statements
are offered by the State to inculpate the defendant. Id. The trial court may
consider evidence undermining the reliability of the statement as well as evidence
corroborating its trustworthiness. Mason, 2013 WL 5861492, at *8 (citing
Cunningham, 877 S.W.2d at 312).
We must first address whether the challenged hearsay statements subject the
declarant, Jared Coleman, to criminal liability and whether he recognized that at
the time of the statements. See Walter, 267 S.W.3d at 890–91. Here, the State
offered the testimony of three witnesses, Leah Larivee, Corey Kerchner, and Alice
14
Yeargan, all of whom testified that Jared Coleman had made statements to them
concerning his and appellant’s participation in Sambrano’s murder.
1. Leah Larivee
Larivee testified that she started dating Jared in January 2011 and that she
moved into a house in which Jared was living in February 2011. A few weeks
after she had moved in, she had a conversation with Jared in which he “just
basically blurted out that he had killed his mom’s boyfriend.” Larivee testified that
this statement was “completely out of the blue.” About a week later, Larivee asked
Jared if he was serious about having killed his mother’s boyfriend. Jared “told
[her] that he was [serious], that he wasn’t joking, and then he proceeded to then tell
[her] how he actually did it.” Jared then told her that he and appellant had formed
a plan to kill Sambrano,3 that, on the day of the murder, he was “dropped off really
early about a mile away from” Sambrano’s residence, that he walked to the
residence, that he waited for appellant, and that both of them shot Sambrano—one
in the side and one in the head. Jared then told Larivee that he and appellant got
3
On appeal, appellant argues that Larivee testified that Jared told her that appellant
was responsible for forming the plan to kill Sambrano, which is thus a “blame
shifting” statement and is inadmissible under Walter. Larivee clearly testified that
Jared told her that both he and appellant formed the plan to kill Sambrano, but
even if he had said that appellant alone formed the plan, the ultimate question is
whether Jared implicated both himself and appellant in Sambrano’s murder, which
he did when he told her that both he and appellant shot Sambrano. Jared did not
make any “blame shifting” statements to Larivee that minimized his role in killing
Sambrano.
15
rid of their clothes and the guns before going back to their grandparents’ house,
where he had been staying.
All of Jared’s statements to Larivee subject him to criminal liability for
Sambrano’s murder, and the statements implicate both himself and appellant
equally in Sambrano’s murder. See Walter, 267 S.W.3d at 899 (“[O]ut-of-court
statements from a co-defendant that are against the declarant’s penal interest but
also inculpate the defendant are viewed with some suspicion. That suspicion is
lessened when the speaker makes no distinction between his conduct and that of
the defendant—where there is absolute equality.”). Moreover, the trial court could
have reasonably concluded that Jared recognized at the time he spoke with Larivee
that his statement that he had participated in Sambrano’s murder by shooting him
was against his penal interest. See id. at 891 n.26 (quoting 4 CHRISTOPHER B.
MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 496 at 813–15 (2d ed.
1994) (“[T]he required understanding of interest is framed in objective terms:
Would a reasonable person have understood that what he said was against his
interest? The aim is to know how the speaker conceived his interests, but, absent
better evidence, the court may attribute to him the interests a reasonable person in
his situation would have.”)). A reasonable person would have understood that
admitting to killing another person was against his interest.
16
We now must determine whether sufficient corroborating circumstances
clearly indicate the trustworthiness of Jared’s statements to Larivee. Jared made
these statements to Larivee within a few weeks of Sambrano’s murder, and he
made the first statement to Larivee, in which he implicated just himself in the
murder, completely spontaneously. He made his other statements, in which he
implicated himself and appellant, approximately a week later, after Larivee asked
him if he was serious about his involvement in the offense. Jared and Larivee were
dating at the time he made the statements. See Woods, 152 S.W.3d at 113 (“These
were ‘street corner’ statements that Rhodes made to his friends without any motive
to shift blame to another or minimize his own involvement in the murders.”);
Dewberry, 4 S.W.3d at 751–52 (considering, in holding that hearsay statements
were admissible, that statements were either spontaneously made or made in
response to casual inquiries from “friends and criminal acquaintances not
connected to the commission of the offense”); see also Walter, 267 S.W.3d at 898
(“Statements to friends, loved ones, or family members normally do not raise the
same trustworthiness concerns as those made to investigating officers because
there the declarant has an obvious motive to minimize his own role in a crime and
shift the blame to others.”).
The State also presented independent corroborative facts that verified Jared’s
statements to Larivee. The medical examiner’s testimony reflected that, based on
17
the presence of rigor mortis and lividity, Sambrano was likely killed in the
morning. Jared told Larivee that he and appellant both shot Sambrano—one in the
side and one in the face—and officers testified that, although they could
immediately tell that Sambrano had been shot in the face, the gunshot wound to his
side was not readily apparent, and it was instead only discoverable after the
officers moved blankets. Investigator Collins testified that the officers kept the
fact of the second shotgun wound to themselves in an effort to evaluate the
credibility of any information about the murder that they received. Several
witnesses testified that appellant and Jared hated Sambrano, and appellant himself
admitted as much during one of his interviews with Investigator Collins.
Officers determined that Sambrano’s wounds were caused by a 20-gauge
shotgun. Russell Coleman, appellant’s uncle, discovered after the murder that his
20-gauge shotgun, which he had forbidden appellant from using, went missing,
and, after he informed his brother Travis, appellant’s father, of this fact, Travis
later returned the shotgun. Travis testified that he took appellant by the house
where the murder occurred, and appellant disappeared and returned with a shotgun
down his pants leg. Appellant then told Travis, “[H]ere’s Uncle Russell’s gun.”
Dakota Graham, a friend of both appellant’s and Jared’s, testified that he owned a
deer rifle that went missing and was later discovered by Russell Coleman in place
of his missing shotgun. Graham also testified that he heard appellant say, on
18
multiple occasions, that he would shoot someone in the face “like he did to
[Sambrano].” Dylan Woolridge testified that appellant admitted his involvement
in the murder to him after he received a copy of the indictment. Appellant related
to Woolridge that he stole a shotgun from his uncle and switched it with a rifle.
Appellant was concerned about Jared’s getting in trouble, and he told Woolridge
that he was the one who killed Sambrano. Investigator Collins also testified
concerning a recorded jailhouse conversation between appellant and his mother,
during which appellant stated that he “would run to Mexico” and that “Jared needs
to keep his mouth shut or he’ll be putting us in prison.”
We conclude that the corroborating circumstances clearly indicate the
trustworthiness of Jared’s statements to Larivee. We hold that the trial court did
not abuse its discretion when it admitted Larivee’s testimony concerning the
statements that Jared Coleman made to her.
2. Corey Kerchner
Kerchner testified that, several months after Sambrano’s murder, Jared came
to live with his family. He stated that he had a conversation with Jared concerning
Sambrano’s murder, and Jared told him that he and appellant planned the murder
for about a year before it happened. Jared also told him that he and appellant
“were doing God’s work” when they killed Sambrano. Kerchner understood this
statement to mean “taking people’s lives, or taking the person’s life like God
19
would.” When the State asked Kerchner if Jared told him “whether or not [Jared]
participated in [the murder],” Kerchner responded that Jared “told [Kerchner] that
he was on the porch but—.” The State cut Kerchner off and immediately passed
the witness.
Jared’s first two statements to Kerchner—that he and appellant planned the
murder for a year and that they “were doing God’s work”—equally implicate both
himself and appellant in Sambrano’s murder, and the trial court could have
reasonably concluded that Jared was aware of the inculpatory nature of the
statements at the time that he made them. These statements, like the ones to
Larivee, were made spontaneously to a friend, albeit several months after the
murder instead of several weeks after. As we have already discussed with regard
to the statements made to Larivee, the State presented independent evidence
corroborating Jared and appellant’s involvement in Sambrano’s murder. We
conclude that corroborating circumstances clearly indicate the trustworthiness of
these two statements to Kerchner and, thus, the trial court did not abuse its
discretion in admitting Kerchner’s testimony concerning these two statements.
However, Jared’s third statement to Kerchner—that he was on the porch
when the murder occurred—minimizes Jared’s role in the murder and shifts blame
for the murder from himself to appellant. See Walter, 267 S.W.3d at 899 (“[W]hen
the declarant minimizes his culpability and shifts major blame to a cohort, the self-
20
serving aspect of the statement generally outweighs the self-inculpatory aspect.”);
Guidry, 9 S.W.3d at 149 (“While some of Prystash’s statements refer to ‘we,’
meaning both himself and appellant, on the critical issue of who killed the victim,
Prystash’s statements inculpate appellant alone as the triggerman and describe with
specificity how ‘appellant’ killed the victim.”). We therefore conclude that the
trial court erroneously admitted this “blame shifting” statement.
The erroneous admission of a hearsay statement constitutes non-
constitutional error that is subject to a harm analysis. Campos v. State, 317 S.W.3d
768, 779 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). We disregard non-
constitutional errors that do not affect the substantial rights of the defendant. See
TEX. R. APP. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).
A substantial right is affected when the error had a substantial or injurious effect in
determining the verdict. Campos, 317 S.W.3d at 779. We do not overturn a
conviction if, after examining the record as a whole, we have fair assurance that
the error did not influence the verdict or had but a slight effect. Id.
Although both the State and appellant referred to Kerchner’s testimony
during closing argument, neither party addressed or emphasized Kerchner’s
specific testimony that Jared told him he was on the porch when the murder
occurred. Instead, the State, in particular, merely reminded the jury that Jared had
told Kerchner that he and appellant planned the murder. This particular statement,
21
which was not elaborated upon by the State during Kerchner’s testimony, was the
only statement made by Jared to another person in which he attempted to shift
blame for the murder solely to appellant. Moreover, as we have already detailed,
the State presented evidence corroborating appellant’s and Jared’s involvement in
the murder. This statement was not the only evidence tying appellant to the
murder. We thus have “fair assurance” that this statement did not influence the
verdict in this case. See id. We therefore conclude that, when considering the
totality of the evidence and all of the surrounding circumstances, the trial court’s
admission of Jared’s statement to Kerchner that he was on the porch at the time of
the murder, did not affect appellant’s substantial rights.
We hold that admission of this statement was harmless error.
3. Alice Yeargan
Yeargan, Kerchner’s mother, testified that Jared moved in with her family in
September 2011. She characterized her relationship with Jared as “close,” and she
stated that he had confided in her on several occasions. She testified that she and
Jared had a conversation about Sambrano’s murder shortly after Jared moved in.
Jared was upset and crying, and he told Yeargan that he and appellant shot
Sambrano. Jared then told Yeargan that if he and appellant got caught, they would
“probably kill themselves because they didn’t want to hurt their mom that way.”
On cross-examination, Yeargan testified that, at the time she had this conversation
22
with Jared, she knew that he planned on talking to Investigator Collins the next
day. She clarified on re-direct examination that she did not know that Jared was
involved with Sambrano’s murder before he admitted as much to her and that she
had not been planning to take Jared to the police before this conversation.
Jared’s statement to Yeargan that he and appellant shot Sambrano is a
permissible “blame sharing” statement that inculpates both Jared and appellant
equally. See Walter, 267 S.W.3d at 896. Additionally, as we have already held
with respect to Jared’s statements to Larivee and Kerchner, the trial court could
have reasonably concluded that the statement subjected Jared to criminal liability
and that Jared recognized as much at the time he made the statement.
Jared made this statement approximately eight months after the murder to a
trusted family friend and maternal figure. Defense counsel elicited testimony from
Yeargan that she took Jared to speak with Detective Collins the day after he made
this statement to her, but there is no indication that his statement to Yeargan was
anything other than a spontaneous admission of Jared’s complicity in the offense.
Yeargan testified that she did not know anything of his involvement in the offense
before he made the admission and that Jared was upset and crying during their
conversation. As we have already held, the State presented independent
corroborative evidence of appellant’s and Jared’s involvement in the offense.
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We therefore conclude that corroborating circumstances clearly indicate the
trustworthiness of this statement and that the trial court did not abuse its discretion
when it allowed Yeargan’s testimony concerning the statement that Jared made to
her.
We overrule appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Higley, and Massengale.
Publish. TEX. R. APP. P. 47.2(b).
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