I agree with the majority opinion. I write because there is a reason, yet unaddressed, why the basis for the dissenting opinion should be reconsidered.
Statements Against Penal Interest We recently addressed the issue of admissibility of a non-testifying co-defendant's confession as a declaration against penal interest in Zarychta v. State, 961 S.W.2d 455 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). We observed that the Court of Criminal Appeals has adopted the United States Supreme Court's view of the federal counterpart to rule 803 (24) based on the respective rules containing very similar language. Zarychta,961 S.W.2d at 458 (citing Cofield v. State, 891 S.W.2d 952, 956 (Tex.Crim.App. 1994)). Unnoticed in Cofield and its progeny, including Zarychta, are the differences in language between the federal and state rules of evidence concerning statements against penal interest.
The federal counterpart is located within rule 804 of the Federal Rules of Evidence, which concerns hearsay objections where declarant is unavailable:
*Page 585(3) Statement Against Interest. 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, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
FED. RULE EVID. 804 (b)(3). The Texas version is found in rule 803 of the Texas Rules of Criminal Evidence dealing with hearsay exceptions applicable regardless of the availability of the declarant:
(24) Statement Against Interest. 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 him to civil or criminal liability, or to render invalid a claim by him against another, or to make him an object or hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. 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.CRIM.EVID. 803 (24).
The differences between the federal and Texas versions are: (1) the federal version requires the declarant to be unavailable, while Texas does not; (2) Texas includes statements that would make one an object or hatred, ridicule, or disgrace, while the federal version does not; and (3) Texas requires all statements against penal interest to be corroborated by circumstances clearly indicating trustworthiness, while the federal version requires only statements offered to exculpate the accused to be corroborated. The significance of these differences upon the issue here is that the federal version does not require corroboration of an unavailable codefendant's statement against penal interest when offered by the government to inculpate the defendant. It is possible that this lack of a corroboration requirement motivated the United States Supreme Court to strictly construe statements against penal interest as not including statements inculpating others in Williamson v. United States,512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994).
Furthermore, there is a line of Texas cases upholding the admission of statements against penal interest made by co-defendants. See McFarland v. State, 845 S.W.2d 824, 835-37 (Tex.Crim.App. 1992); Tidrow v. State, 916 S.W.2d 623, 626-29 (Tex.App.-Fort Worth 1996, no pet.). Although the concurring opinion in Miles v. State, 918 S.W.2d 511, 518 n. 2 (Tex.Crim.App. 1996) (Baird, J., concurring), urged thatMcFarland should be overruled, the Court of Criminal Appeals has not done so.
I would hold that we are not bound by the interpretation of the federal rule by the United States Supreme Court, based on the substantial differences in the respective evidentiary rules regarding statements against penal interest. Indeed, the approach of the United States Supreme Court in Williamson was to evaluate each statement within a confession as a separate statement for purposes of admissibility under the federal hearsay exception.Id. at 2434-35 This is antithetical to the general approach Texas has taken in evaluating admissibility of statements. See. e.g.,Marini v. State, 593 S.W.2d 709, 713 (Tex.Crim.App. 1980) (holding that later declarations during defendant's confession leading officers to evidence of the crime constituted part of one continuous confession that began at the police station). The federal interpretation would lead to the practice of examining every sentence or independent clause for self-inculpation and corroboration to be admissible under the hearsay exception for statements against penal interest.
I would follow McFarland until expressly overruled by the Court of Criminal Appeals. Had appellant preserved the issue, I would hold Lindsey's statements admissible because they inculpated Lindsey and they are clearly trustworthy. As in Tidrow, Lindsey's statements are corroborated by appellant's own confession.Tidrow, 916 S.W.2d at 628. They are also corroborated by physical evidence, as in McFarland. McFarland, 845 S.W.2d at 836. This is not a case where the declarant sought to direct the blame at appellant in order to escape responsibility for his actions. To the contrary, Lindsey admitted his guilt for the charged offense and merely implicated appellant as a party.
Therefore, I urge the Court of Criminal Appeals to revisit this issue. *Page 586