dissenting.
I respectfully dissent.
The majority arrives at their decision oblivious to the three avenues of authority offered by the appellant for DuBois’s testimony to be not only relevant but admissible. The appellant was trying to implicate the appellees in a plan to burn their residence, which would have been a defense to the appellees’ suit on their homeowner’s policy. The testimony of DuBois presented both circumstantial and direct evidence of either their complicity in the fire or a rather substantial involvement in its inception.
Though I believe the court’s ruling that DuBois’ testimony was hearsay was in itself incorrect, the disallowance of his testimony as a hearsay exception under TEX. R.CIV.EVID. 803(24) seemed to totally ignore the basis of the exception to the rule. It is difficult to conceive a more pointed example of a statement against interest as *237that uttered by Ronnie McDonald. I feel that the majority simply runs around this problem. Additionally, I would have held that Ronnie McDonald’s statements to Du-Bois that he and his brother, Lewis McDonald, had an agreement which resulted in the burning of Lewis’s house and Ronnie receiving $10,000 of the insurance proceeds was evidence of a legally operative fact which is not hearsay. Again the majority somehow ignores the trial court’s ruling by concluding that the testimony of DuBois was not based upon something which Ronnie observed. See Yellow Freight Sys. v. North Am. Cabinet Corp., 670 S.W.2d 387, 390 (Tex.App.—Texarkana 1984, no writ). He does not have to observe it — he was a partner to the agreement.
Finally, I believe that rule 801(e)(2)(E) of the Texas Rules of Civil Evidence has negated the common-law requirement that there be evidence of a conspiracy independent of the out-of-court statements of the purported co-conspirator of a party. In Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) the U.S. Supreme Court has held that rule 104(a) of the federal rules, an identical provision to rule 104(a), Texas Rules of Civil Evidence, abolished the requirement of independent evidence of a conspiracy. Thus, the testimony of DuBois would have established the prima facie case of conspiracy between the McDonalds in order to meet the requirement of the rule.
The excluded testimony was crucial to the appellant’s defense and could very well have caused a different result. I believe it was error for the court to have not allowed the jury to hear this evidence.